Thomas v. Commonwealth

• Decision Date: 29 June 1893
• Citation: 90 Va. 92,17 S.E. 788
• Parties: THOMAS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

17 S.E. 788

90 Va. 92

THOMAS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 29, 1893.

Intoxicating Liquors — Sufficiency of Indictment—Local Option — Repeal of Statute-Effect—Validity of Election—Judicial Notice.

1. An indictment alleging that defendant "did unlawfully sell intoxicating liquor, wine, or spirits, or malt liquors, or mixtures thereof, is not demurrable on the ground that the charges are laid in the disjunctive. Morgan's Case, 7 Grat. 592, followed.

2. Though Act Feb. 26, 1886, relating to local option, was repealed by Code 1887, § 4202, providing that all acts of a general nature in force at the adoption of the Code of 1887 shall be repealed after May 1, 1888, an election under the act, supra, held July 1, 1886, is not affected by the subsequent adoption of the Code.

3. An indictment for the violation of Act Feb. 26, 1886, 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, as the court will take judicial notice of such vote. Savage's Case, 5 S. E. Rep. 563, 84 Va. 582, followed.

4. A mere Clerical mistake in an entry on the order book of a county court of the result of an election hold under Act Feb. 20, 1886, relating to local option, will not affect the validity of the election.

5. A court will take judicial notice that apple brandy is intoxicating.

Error to circuit court, Russell county; John A. Kelley, Judge.

One Thomas was convicted of a violation of the local option law, and brings error. Affirmed.

J. C. Gent, for plaintiff in error.

The Attorney General, for the Commonwealth.

LEWIS, P. This was a prosecution in the county court of Russell county against the plaintiff in error for a violation of the local option law. There was a demurrer to the indictment, which was overruled, whereupon issue was joined on the plea of not guilty. The jury found the defendant guilty, and assessed a fine against him of $100, and there was judgment accordingly. To the judgment the defendant applied to a judge of the circuit court for a writ of error, which was refused, whereupon, on his petition, a writ of error was awarded by this court. The indictment charges that the defendant, in October, 1891, "at his dwelling house, in the Lebanon magisterial district, of aforesaid county, did unlawfully sell intoxicating liquor, wine, or spirits, or malt liquors, or mixtures thereof."

The first ground of demurrer relied upon here is that the indictment is in the disjunctive, but this objection is met by Morgan's Case, 7 Grat. 592. In that case the indictment was for unlawfully selling rum, wine, brandy, or other spirituous liquors, and it was demurred to on the ground that the charges were laid in the disjunctive; but the demurrer was overruled by the trial court, which ruling was affirmed by the appellate court. This case was decided in 1850, and has ever since been followed as authority in Virginia, in similar cases.

It is next insisted that the demurrer ought to have been sustained because the local option act of February 26, 1886, (Acts 1885-86, p. 258,) was repealed by section 4202¹ of the Code, and because the provisions of chapter 25 of the Code, in regard to local option, have never been put in force in Russell county. We are of opinion that this position, also, is untenable. Granting that by virtue of the said section the act of February 26, 1886, gave way to the provisions of chapter 25 of the Code on the same subject, it does not follow that what was done under the said act prior to the going into effect of the Code was thereby undone or set aside; so...