State v. Cottrill

• Citation: 6 S.E. 428,31 W.Va. 162
• Court: West Virginia Supreme Court
• Decision Date: 28 February 1888
• Parties: State v. Cottrill.

6 S.E. 428

(31 W.Va. 162)

State

v.Cottrill.

Supreme Court of Appeals of West Virginia.

February 28, 1888.

1. Intoxicating Liquors—Indictment—Place of Sale.

In an indictment lor selling spirituous liquors without a license, it is not necessary to allege in the indictment the place where the liquor was sold.

2. Criminal Law—Trial—Waiver of Jury.

On the question of whether section 14 of the bill of rights of this state, declaring that "trial of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, " not only secures to persons accused of crimes and misdemeanors the right to have an issue of not guilty to the charge in the indictment tried by a jury, and whether it inhibits the trial of such issues by the court in lieu of a jury, and whether an issue in a misdemeanor case can be so tried even by consent of the defendant, the court is equally divided. Snyder and Green, JJ., for affirmance. Johnson, P., and Woods, J., contra.

3. Same.

As to whether section 29 of chapter 116 of the Code, so far as it provides for the trial of misdemeanor cases by the court in lieu of a jury, by consent of the defendant, is unconstitutional, the court is equally divided. Snyder and Green, JJ., for affirmance. Johnson, P., and Woods, J., contra.

(Syllabus by the Court.)

Error to circuit court, Doddridge county.

R. S. Blair, for plaintiff in error.

Atty. Gen. Caldwell, for the State.

Johnson, P. At the July term, 1886, of the circuit court of Doddridge county, the defendant was indicted for unlawfully retailing spirituous liquors. The indictment charged that "Emmerson Cottrill, on the——day of January, 1886, * * * in the said county, unlawfully, and without a state license therefor, did sell, offer and expose for sale, in said county, spirituous liquors, wine, porter, ale, and beer, and drinks of like nature, and a mixture thereof, " etc. The defendant moved the court to quash the indictment, which motion was overruled, and the defendant pleaded not guilty. The order shows that issue was joined on said plea, "and, a jury being waived, the matters of law and fact were submitted to the court, and thereupon the court rendered judgment against the defendant for ten dollars fine, and the costs. It is therefore considered by the court that the state of West Virginia recover against the said defendant ten dollars fine, and the costs herein expended." Whereupon the defendant moved the court to set aside the judgment, and grant him a new trial, which motion was overruled, and to the judgment the defendant obtained a writ of error. There are two questions argued here upon the grounds of error assigned: First, is the indictment fatally defective because it does not state the place where the liquor was sold? And, second, could the court, even with the consent of the defendant, under our bill of rights, in lieu of a jury, try the issue joined?

The counsel for plaintiff in error, as to the first question, relies on section 21 of chapter 32 of the Code, and Com. v. Head, 11 Grat. 819. It is true, as stated in the argument of counsel for plaintiff in error, that section 21 of chapter 107 of the Acts of 1877, provides that "every certificate to sell spirituous liquors, wine, porter, ale, or beer, or any drink of like nature, or to furnish drinks or refreshments at a public theater, shall specify the house where they are to be sold, and a sale at any other place shall be held to be a sale without license." The manifest intent of this was to limit the party to a single place, and not to permit him, under one license, to sell liquors at every place in the county, and thus deprive the state of its revenue, and to establish places for the sale of liquors in certain parts of the county without the consent of the people of such places. Samuels, J., in his opinion in Com. v. Head, supra, said: "The grand jury intended to present an offense against the latter clause of the statute, (chapter 38, § 18, p. 209, Code.) This offense is local in its nature. Place is of its essence, and yet no place is alleged but the wholecounty." The latter clause of said section 18 is as follows: "And if any person sell, by retail, wine, ardent spirits, or a mixture thereof, to be drank in or at the store, or other place of sale, he shall, unless he be licensed to keep an ordinary at such store or place, forfeit thirty dollars." The first clause of the section is that "if any person shall, without paying such tax and obtaining such certificate as is prescribed by the fourteenth section, sell, by retail, wine, ardent spirits, or a mixture thereof, he shall forfeit thirty dollars." The judge says that "the grand jury intended to present an offense against the latter clause of the section, " which offense is local in its nature. Not so with the offense under the first clause of the section. He says, further: "A sale of ardent spirits by an unlicensed dealer, not to be drunk at the place of sale, would fall within the first clause of the section above cited. The identity of the place at which the spirits were to be drunk with the place at which they were to be sold, enters into and forms part of the offense under the latter clause of the statute. If this be so, the defendant should be apprised of the place alleged, so that he may be prepared with proof, if any he have, to show that the place of sale and that of drinking are not the same." The statute now is very different. There is now no distinction as to selling, whether to be drank at the place where sold or elsewhere. If he has no license, he is liable if he sells anywhere in the county. If he has a license to sell at a particular place, he may defend himself by showing his license if the proof is the selling was there. The state proves the selling, and that it was within 12 months, and in the county. Of course, the proof shows where the liquor was sold in the county. The state rests. The defendant then offers his license. If the selling was at the place designated therein, it is a perfect defense. If the selling is admitted, the license admits the defendant's guilt if the selling was at a different place in the county, and within 12 months. It might as well be contended that an indictment for assault and battery should allege the place in the county where the offense was committed. The motion to quash was properly overruled.

The other point relied on presents much more difficulty. Did the defendant's waiver of a jury confer on the court the right to try the issue joined? The statute provides that "in any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties, or their counsel by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact shall be heard and determined, and judgment given by the court; or, by like consent, the jury may consist of seven, and in that case a verdict shall be as valid, and have the same effect, as if it had been found by a jury of twelve." Code 1887, c. 116, § 29, p. 760, (same as section 29, c. 83, Acts 1882.) It is insisted by counsel for plaintiff in error that this statute is unconstitutional. Section 14 of the bill of rights declares: "Trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless, upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare his defense; and there shall be awarded to him compulsory process for obtaining witnesses in his favor." The attorney general, with his usual fairness, has cited the authorities on both sides of the question. He calls the attention of the court to the fact that substantially the same statute we are now considering was a part of the Code of 1849, (section 9, c. 162;) that it is in the same language found in the Code of 1860, (section 38, c. 162;) and also in the Code of 1868 of this state, (section 29, c. 116;) that the same language substantially as is found in the clause of our bill of rights now under consideration is found in section 8 of the bill of rights in the constitution of 1863;and says: "When all this is considered, together with the fact that for nearly forty years this law has been upon our statute books, and during that long period it has governed the practice in misdemeanor cases; that its existence was known to all lawyers; that, in the trial of revenue causes at least, it was in constant use in every circuit in the state; and that no question has been raised heretofore as to its constitutionality in the court of last resort, —this court will undoubtedly only change the established practice, which has passed under the eyes of its judges, in so many records, entirely unquestioned, by declaring this statute unconstitutional, when absolutely compelled to do so." He also refers to the fact that, in one volume of our reports, there are four revenue cases, in which it appears the trial by jury was waived: State v. Miller, 26 W. Va. 106; State v. Bruce, Id. 153; State v. Enoch, Id. 253; State v. Oliver, Id. 422. This is true, and other cases might be cited; but in none of the cases, as the attorney general admits, was the constitutional question raised, and of course it was not considered by the court, as its attention was not called to it, and it was overlooked by the court. It shows, however, a long acquiescence in the statute as constitutional. In Wilson v. State, 16 Ark. 601, it was held that, the statute of the state having made no provision for trials by consent in criminal cases other than a trial by jury, nothing short of the confession of the facts, or the finding of them by a verdict of a jury,...