Savage v. Commonwealth

• Decision Date: 08 March 1888
• Citation: 5 S.E. 563,81 Va. 582
• Parties: Savage v. Commonwealth.
• Court: Virginia Supreme Court

5 S.E. 563

(81 Va. 582)

Savage

v.Commonwealth.

Supreme Court of Appeals of Virginia.

March 8, 1888.

1. Intoxicating Liquors—Local Option—Judicial Notice.

An indictment for violation of Acts Va. 1885-86, p. 259, § 5, forbidding the sale of intoxicating liquors within any magisterial district voting against license, need not allege that the magisterial district in which the offense occurred had voted against license, since the court will take judicial notice of such a vote.

2. Same—Local Option—Indictment.

It is sufficient, in such indictment, to describe the article sold as intoxicating liquors; it need not be added that the liquor was such as was the subject of license before the vote against license was taken.

3. Same—Illegal Sales—Indictment—Time or Offense.

Under Acts Va. 1877-78, p. 335, §§ 11, 12, providing that no indictment shall be deemed invalid for omitting to state, or stating imperfectly, the time when the offense was committed, when time is not the essense of the offense, an indictment charging that defendant "on the——day of March, 1887, did unlawfully sell intoxicating liquors, " is sufficiently certain as to the time of the offense.

4. Same—Illegal Sales—Proof of Intoxicating Character of Drink Sold.

Upon a trial for unlawful sale of intoxicating liquors, the prosecuting witness testified that he applied to the clerk of defendant's hotel for whisky, and was told that they had no whisky, but could let him have some ginger; whereupon he bought and drank something called " Ginger, " which was served in a whisky glass in the former bar-room of the hotel, and looked and tasted like whisky. Witness thought it would have made him drunk as readily as ordinary whisky, had he drank enough of it; but would not swear it was intoxicating, because he did not drink enough of it to make him drunk. Held, that the proof failed to support the allegation that the liquor sold was intoxicating.

5. Same—Illegal Sales—Indictment—Place of Sale.

A conviction for such offense cannot be had when the only evidence as to the place where the offense occurred is that it was at defendant's hotel. It should be directly shown in evidence, and not left to inference, that the sale took place within the county and the magisterial district in which the venue is laid.

Error to circuit court, Accomac county.

Parramore & Browne and J. S. Wise, for plaintiff in error. R. A. Ayers, Atty. Gen., and Edmund Pendleton, for the Commonwealth.

Lewis, P. The plaintiff in error was indicted and convicted in the county court of Accomac county for selling intoxicating liquors, and sentenced to imprisonment in jail for 30 days, and to pay a fine of $100. This judgment having been affirmed by the circuit court of the said county, the case, on a writ of error, was brought to this court. The indictment, to which there was a demurrer, charges that the defendant, "on the ——day of March, 1887, in the magisterial district of Lee, in the said county, did unlawfully sell intoxicating liquors to one John Johnson, against the peace and dignity of the commonwealth."

It is contended for the plaintiff in error that the indictment is defective— First, because it does not charge that the offense was committed in a magisterial district which had voted against license; secondly, because it does not charge that the liquor sold was such as was the subject of license under the statute before the vote on the question of license was taken; and, thirdly, because it does not state a time certain at which the liquor was sold. We are of opinion that these grounds of objection are untenable. It was not necessary to allege in the indictment that the magisterial district therein mentioned had voted against license, for that was a fact of which the court would take judicial notice, since the result of an election in favor of no license, when duly certified and laid before the court, as prescribed by the statute, is to adopt in the magisterial district so voting the provisions of a public statute. Nor was it necessary to allege that the liquor charged to have been sold was anything than merely intoxicating. The language of the statute is that "any person who shall sell any intoxicating liquors within the limits of any magisterial district voting against license...