Shiflett v. Commonwealth

• Decision Date: 20 March 1913
• Citation: 77 S.E. 606,114 Va. 876
• Parties: SHIFLETT. v. COMMONWEALTH.
• Court: Virginia Supreme Court

77 S.E. 606

114 Va. 876

SHIFLETT.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 20, 1913.

1. Intoxicating Liquors (§ 208^*)—Offenses —Indictment—Time of Offense—Negativing Limitations.

While, under Code 1904, § 3999, providing that an indictment shall not be invalid for omitting to state the time at which the offense was committed, the indictment for unlawfully selling intoxicants need not allege the precise time of the sale; it must allege facts showing that the offense charged was committed within the period of limitations.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 228, 261; Dec. Dig. § 208.*]

2. Indictment and Information (§ 60*)— Sufficiency.

An indictment is not good as a rule, unless, assuming its allegations to be true, it shows a prima facie case for punishment.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 182, 26G, 267; Dec. Dig. § 60.*j

3. Indictment an

The indicd Information {§ 60*)— Sufficiency.tment is insufficient if it may be true without making accused guilty of the offense.

[Ed. Note.—For other cases, see Indictment and Information. Cent. Dig. §§ 182, 266, 267; Dec. Dig. § 60.*]

4. Intoxicating Liquors (§ 208*)—Offenses —Indictment.

An indictment which recited that it was found at the December term, 1912, and charged that accused "within 12 months on the last preceding 191—, in the said county, " did sell, etc., without a license, sufficiently showed that the offense was committed within the statutory period of limitations, and was sufficient notwithstanding the omission in charging the year in which the offense was committed.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 228, 261; Dec. Dig. 5 208.*]

5. Indictment and Information (§ 119*)— Nonessential Averments.

The courts are inclined to treat as surplusage all improper averments in indictments, where the remaining allegations set out the offense charged with substantial certainty.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311—314; Dec Dig. § 119.*]

6. Indictment and Information (§ 114*)— Allegations—Second Offense.

Where an offense is punishable by statute with a higher penalty if it is a second or subsequent offense, the indictment must so allege, in order to impose the higher penalty.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 301-307; Dec. Dig. § 114.*] Error to Circuit Court, Greene County.

Marcus Shiflett was convicted of unlawfully selling intoxicants, and brings error. Reversed in part, and affirmed in part.

See, also, 77 S. E. 608.

John S. Chapman, of Stanardsville, for plaintiff in error.

The Attorney General, for the Commonwealth.

BUCHANAN, J. The first error assigned is that the trial court erred in not sustaining the demurrer to the indictment.

The following is a copy of the indictment: "The jurors of the commonwealth of Virginia in and for the body of the county of Greene and now attending the circuit court of said county at its December term, 1912, upon their oath present that Marcus Shiflett within twelve months on the last preceding 191—, in the said county, did unlawfully sell ardent spirits without having obtained license to do so, against the peace and dignity of the commonwealth of Virginia."

The objection made to the indictment is that the averment in it as to the time when the offense was committed is meaningless, and that it does not charge the date of the sale nor such facts as show that the sale was made within two years prior to the indictment, the statutory period for the prosecution of such offenses.

While it is not necessary in a prosecution for the unlawful sale of ardent spirits for the indictment to state the precise time of the sale (section 3999 of the Code; Savage's Case, 84 Va. 619, 5 S. E. 565; Arring-ton's Case, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242;Runde's Case, 108 Va. 873, 61 S. E. 792), it is necessary where there is a statute of limitations (as in this case) barring the prosecution after a certain time that such facts should be stated in the indictment as will show that the offense charged was committed within the statutory period; for no indictment, as a general rule, is good unless, assuming its allegations to be true, it discloses a prima facie case for inflicting the punishment provided by law. If the indictment may be true, as was held in Young's Case, 15 Grat. (56 Va.) 664, and in Bruce's Case, 26 W. Va. 153, 157, both prosecutions for selling liquor in violation of law, and still the accused may not be guilty of the offense, the indictment is insufficient. See, also, 1 Bishop's Cr. Proc. §§ 403, 405; Whart. Cr. PL & Pr. §§ 137, 318.

While the words, "on the last preceding 191—, " following the words, "within twelve months, " are meaningless, they may be treated as surplusage and rejected if the indictment is thereby made sensible (1 Bishop's New Cr. Pr. § 158; Commonwealth v. Randall, 4 Gray [Mass.] 36, 38); for courts of justice are disposed, as said by the court in the case last cited, to treat as surplusage all erroneous and improper averments in complaints and indictments where the resi due of the allegations sets out the offense charged in technical language, and with substantial certainty and precision. After rejecting the words "on the last preceding 191—, " the indictment states that the grand jury attending the circuit court of Greene county, at its December term, 1912, "upon their oath present that Marcus Shiflett within twelve months * * * in the said county did unlawfully sell ardent spirits without having a license to do so." These are apt and...