Robinson v. Commonwealth

• Decision Date: 13 January 1916
• Citation: 87 S.E. 553,118 Va. 785
• Parties: ROBINSON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

87 S.E. 553

118 Va. 785

ROBINSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 13, 1916.

Error to Corporation Court of Danville.

Lewis Robinson was convicted of unlawfully selling ardent spirits, and he brings error. Affirmed.

B. H. Custer and Harry Wooding, Jr., both of Danville, for plaintiff in error.

The Attorney General, for the Commonwealth.

HARRISON, J. The plaintiff in error, Lewis Robinson, was convicted of unlawfully selling ardent spirits on the 2Sth day of November, 1913, upon a warrant issued by the mayor of the city of Danville in the morning of that day. From the judgment of the mayor he appealed to the corporation court of Danville, where he was also found guilty and given a jail sentence of 12 months and fined $200. From the last-named judgment he brings his case to this court for review.

The record shows that at night, on the 28th of November, 1913, after the warrant was issued, but before it was served, the accused made a second unlawful sale of ardent spirits, and that thereupon the warrant was served, and the accused arrested. Upon the trial the prisoner moved the court to require the commonwealth to elect which of the two offenses committed on the 28th of November, that in the morning or that at night, he would rely upon for conviction. This motion was granted, and the commonwealth elected to proceed upon the second offense committed at night. Whether or not it was proper to require the commonwealth to elect, for prosecution, between two unlawful sales made on the same day when the offense charged was unlawfully selling on that day, is a question as to which we need express no opinion, as the ruling was in favor of the prisoner.

When the trial proceeded upon the night sale of the 28th of November, 1913, the prisoner moved the court to strike out all evidence of the unlawful sale at that time, because it took place after the warrant had been issued, but before it had been served, the contention being that evidence of an offense committed after the warrant was sworn out, although on the same day, was inadmissible and insufficient to sustain the warrant. The refusal of the court to grant this motion constitutes the first assignment of error. In connection with this assignment of error it is also contended that the lower court erred in refusing to instruct the jury that they could not convict the defendant of sell ing ardent spirits after the warrant against him had been issued, and in lieu thereof telling the jury that they could not convict the defendant of selling ardent spirits after the date of the warrant.

A careful consideration of the Virginia cases involving prosecutions for the unlawful sale of ardent spirits shows that the function of the warrant or indictment is merely to apprise the accused of the offense or offenses for which he is to be tried. A warrant cannot be made a blanket for all future offenses within its purview, for the reason that it would be an indefensible lack of fairness to the accused, who should be notified for what offense or offenses he is to be tried. When, however, as in the present case, the warrant charges that the defendant "did unlawfully sell ardent spirits on November 28, 1913, " this was not notice of a single sale, but notice of all selling on that day. So that the defendant had full notice that he would be tried for any unlawful sale made on the 28th of November, 1913, and was not therefore prejudiced by his conviction of such an offense committed on that day. Nor was he prejudiced by the fact that the warrant was issued, though not served, before the sale for which he was tried, for the reason that under the broad powers given the judge of the trial court (section 4107, Code 1904) on an appeal from a justice of the peace, either to amend the old warrant or to issue a bench warrant, the court could have issued a warrant in the exact words of the warrant on which the defendant was being tried, and no objection could have been made. This being so, why require the court to do the vain thing of copying the warrant before it, in order to obviate an objection purely technical in its nature, and without the slightest advantage to the accused.

It is further objected that the court erred in refusing to instruct the jury that the testimony of a detective or one acting as such, ought to be considered by the jury with more than ordinary caution.

The facts are that a certain policeman of the city of Danville, seeing one Jeffries with a flask of whisky, and learning from him that he had bought it from the accused, swore out a warrant, and in order to corroborate Jeffries, they sent him with a piece of marked money to purchase more whisky from the defendant in order...