Sledd v. Commonwealth
| Decision Date | 26 May 1870 |
| Citation | 60 Va. 813 |
| Parties | SLEDD v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
(Absent CHRISTIAN, [a1] J.)
1. Since the act, Code ch. 207, § 11, no mode of stating the time of an offence in an indictment or presentment can vitiate it.
2. A butcher carrying on his business in the markets of a city who goes out into a county and buys cattle, sheep or hogs and butchers the animals and sells the meat at his stall in the market, comes within the provisions of the act of April 19th, 1867, § 22, Sess. Acts 1867, p. 822, in relation to assessment of taxes on licenses, and must take out a license for so buying. [d1]
3. The jury may amend their verdict at any time before they are discharged.
4. There being three counts in a presentment, and the jury having found the defendant guilty on the first count and assessed his fine. and not gnilty on the second and third counts, the judgment should be for the Commonwealth on the first count, and for the defendant on the second and third counts.
5. In such case there having been a general judgment for the Commonwealth, this court will amend and affirm it.
At the August term 1867 of the County court of Henrico, the grand jury presented Wm. W. Sledd, first, that within two years last past, in said county, he did, without a license authorized by law, unlawfully canvass the said county for the purpose of buying and offering to buy, and did actually buy certain matter of subsistence for man, to wit: cattle, sheep and hogs, not for his own use or for the use of his family.
There was a second and third count in the presentment. The second for buying and selling cattle for profit, and not for feeding and grazing for as long as two months, without a license; and the third was for selling cattle for others on a commission for profit, without a license.
The defendant appeared and demurred to the presentment and each count thereof; and also pleaded not guilty. But the court overruled the demurrer to the presentment; and the jury under the instructions of the court, found the defendant guilty under the first count of the presentment, and assessed his fine at ten dollars; and found him not guilty on the second and third counts.
During the progress of the trial, the defendant took two bills of exception to the rulings of the court. It appeared from the evidence, that Sledd, at various times and places, and among others, at the State scales and dividing pens, near the city of Richmond, and at the end of the Brooke turnpike, five miles from the city, in Henrico county, did buy and offer to buy cattle, sheep and hogs, and at various times within two years, prior to this presentment, and since the passage of the act of assembly concerning the assessment of taxes on licenses, passed February 13th, 1866, and April 19th, 1867, and down to the time of making the presentment; and went to said places for the purpose of buying the live stock of said description, of any and all persons from whom he could buy them, without a license to canvass the county of Henrico under the acts of February 13th, 1866, and April 19th, 1867.
And it further appeared that Sledd had, for many years carried on the business of a butcher at the markets in the city of Richmond, that he had regularly paid the dues and taxes assessed by the city authorities, consisting of stall rents and other charges; and had paid his internal revenue tax to the United States as and for a butcher carrying on said employment; and was a butcher carrying on his business in the said city at the time when he bought and offered to buy live stock as aforesaid in said county for his business as a butcher; and that he slaughtered the same and converted them into butcher's meat for sale at his stall in the market; and he did not sell them as live stock.
The head of the Brooke turnpike is on the road leading from the State scales or dividing pens, and is a place of common resort for butchers, hucksters and others, to meet the vendors of live stock, chickens, eggs, butter and other provisions for the market of Richmond. Stock and provisions are commonly bought and sold at that place, and often on the road between that place and the city.
When the evidence had been introduced, the attorney for the Commonwealth moved the court to instruct the jury as follows: If the jury shall believe from the evidence, that the defendant, Wm. W. Sledd, at different times during the two years next before this presentment was made, and since the 13th of February 1866, and since the 19th of April 1867, went into different places in the county of Henrico, for the purpose of buying or offering to buy, and did offer to buy, and actually buy, calves, and other cattle, or sheep or hogs, at such times and places, from any persons who had the same for sale, upon the best terms the said Sledd could obtain, and not for his own use or for the use of his family, but to be killed and sold for human food, and that the defendant had no license to canvass said county under the provisions of the act passed the 13th of February 1866, or of the act passed the 19th day of April 1867, then they should find the defendant guilty under the first count of the presentment; even though they should further believe from the evidence, that the defendant was, during all the said period of two years, a regular butcher, carrying on his business as such in the markets of the city of Richmond, under authority of said city; and that he bought said calves and other cattle, sheep and hogs, for the purpose of slaughtering them and selling them at his stall or stalls in said market, in the prosecution of his said business of a butcher; and that he did so slaughter and sell them. This instruction the court gave; and the defendant excepted.
After the foregoing instructions were given, which was on Saturday the 10th of October, the jury were sent out to consider of their verdict, and failing to agree, they were adjourned over to the 15th of the month; to which the defendant objected, but the objection was overruled by the court. On the 15th, the jury were again called, and again retired to consider of their verdict; and after a considerable time they returned into court with a verdict in the following words and figures, viz: " Under the instructions of the court, we, the jury, find the defendant guilty, and assess his fine at ten dollars." And thereupon, the attorney for the Commonwealth suggested to the jury to amend the form of their verdict, so as to read: We, the jury, following the instructions of the court, find the defendant guilty, & c., & c. To which amendment, one of the jurors objected. At the instance of the defendant, the jury were then polled, each juryman responding, that was his verdict. And after the polling of the jury and before they were discharged, the defendant moved the court to set aside the verdict on the ground that the jury had found the defendant guilty under the whole presentment and each count thereof, and there was no evidence on the second and third counts; which motion the court overruled. And therefore, one of the jury, after hearing the discussion upon the motion to set aside the verdict, said that he desired to amend his verdict. The court then, at the instance of the attorney for the Commonwealth, enquired of the jury whether they desired to amend their verdict, and took the vote of each juryman in open court upon the question; to which proceeding of the court the defendant objected; but the court overruled the objection; and each of the jurymen answering that he did desire to amend his verdict, the court sent them out to consider of their verdict; to which the defendant objected; and after retiring, they again returned into court, and handed in a verdict in the words and figures following, viz:
Under the instructions of the court, we, the jury, find the defendant guilty under the first count of the presentment, and assess his fine at ten dollars; and not guilty as to the second and third counts of the presentment. To which the defendant objected.
The verdict in the form last returned was thereupon recorded in the presence of the jury, which was objected to by the defendant; and the jury were thereupon discharged. The defendant then moved the court to set aside the verdict as not the verdict of the jury, and as contrary to the law and the evidence; which motion, the court overruled. And the defendant excepted to all the rulings of the court herein stated, and the exception referred to the first and made it a part of the second.
The judgment of the court was--Therefore, it is considered by the court, that the Commonwealth recover against...
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