White v. Commonwealth

• Decision Date: 16 January 1907
• Citation: 59 S.E. 1101,107 Va. 901
• Parties: WHITE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

59 S.E. 1101

107 Va. 901

WHITE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 16, 1907.

1. Indictment and Information—Language of Statute.

On a prosecution for" unlawfully selling liquor in the county of Mathews, contrary to Acts 1901-02, p. 765, c. 653, an indictment charging the offense in the terms of the statute was sufficient.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 289-294.]

2. Intoxicating Liquors—Indictment—Sufficiency.

On a prosecution under Acts 1901-02, p. 765, c. 653, being an act to suppress the unlawful sale of liquor in Mathews county, the indictment was not insufficient because it did not state the place within the county at which the sale was made.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 227.]

3. Criminal Law — Trial—Evidence—Election.

Where the indictment charged defendant with unlawfully selling liquor within the two years last past in Mathews county, contrary to Acts 1901-02, p. 765, c. 653, it was not error to refuse to compel the state to elect on what day within the two years the offense was committed.

4. Intoxicating Liquors — Prosecutions-Evidence.

Acts 1901-02, p. 765, c. 653. being an act to suppress the unlawful sale of liquor in Mathews county, provides that the fact that any person has a license as a retail liquor dealer from the United States and no such license from the state shall be evidence of selling by retail without a state license, and that the fact that a person has such a United States license may be proved by the evidence of the internal revenue collector for the district or any of his deputies who know the fact, or by any person who has seen the license. Held that, on a prosecution under the statute, it was not error to permit the state to prove the issuance of a United States license to defendant by introducing a certificate of the collector of internal revenue showing that a license had been granted to defendant, which certificate was authenticated by a certificate of the United States district judge and a certificate by the clerk of the court.

5. Same—Instructions.

Where, on a prosecution charging defendant with having sold liquor at retail contrary to the statute within the two years last past, the only showing made by the commonwealth was evidence that defendant had had a United States license covering only the last eight months of the two years, an instruction that, if defendant held a license from the United States within two years last past, it would be evidence of selling liquor by retail, but that the jury must believe that defendant had sold it within the two years last past, was erroneous.

6. Same.

The probative value of the evidence of the issuance of a United States license is to be determined in connection with all the other evidence in the case.

7. Same.

The question as to the probative value of the evidence of the issuance of a United States license is a question primarily for the jury.

Error to Circuit Court, Mathews County.

J. T. White was convicted under Acts 1901-02, p. 765, c. 653, of unlawfully selling liquor in Mathews county, and he brings error. Reversed, and remanded for a new trial.

J. N. Stubbs, for plaintiff in error.

The Attorney General, for the Commonwealth.

KEITH, P. White was indicted under "An act to suppress tippling houses, the illegal and unlawful sale or traffic in ardent spir-its, in the county of Mathews, and to provide a penalty therefor." Acts of Assembly 1901-02, p. 765, c. 653.

The indictment is in the following words: "The jurors of the commonwealth of Virginia, in and for the body of the county of Mathews, and now attending said court at its March term, 1907, upon their oath present that J. T. White, in said county and within the two years last past, did unlawfully and without a state license so to do, sell spirituous or malt liquors, whisky, brandy, wine, ale, beer, or some mixture thereof, alcoholic bitters, bitters containing alcohol, or some mixtures, preparations or liquors which will produce intoxication, against the peace and dignity of the commonwealth. * * *''

A demurrer to this indictment was overruled, a plea of not guilty entered, upon which the jury rendered a verdict of guilty, and assessed a fine of $250, and to the judgment upon that verdict a writ of error was awarded by this court.

The first error assigned is to the judgment of the court upon the demurrer.

The indictment follows the statute, and this is sufficient.

In Commonwealth v. Young, 15 Grat. 664, it is said: "It is generally proper and safest to describe the offense in the very terms used by the statute for the purpose. But it is sufficient to use In the indictment such terms of description as that, if true, the accused must of necessity be guilty of the offense described in the statute."

The specific objection taken to this indictment is that it does not state the place at which the sale was made, and Arrington's Case, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242, is relied upon; but that is of a class of cases such as Head's Case, 11 Grat. 819, Boyle's Case, 14 Grat. 674, and Young's Case, supra, in which the place was of the essence of the offense. In Head's Case, for instance, the indictment was for the selling of ardent spirits by retail, without a license, to be drunk where sold. The court held that it was not sufficient to state that the sale was in the county, but the place in the county where the sale was made must be set out, in order that the defendant might make a satisfactory defense. The prosecution took place under section 18, c. 38, of the Code of 1849, which provides 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, 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 court, in its opinion, says: "The grand jury intended to present an offense against the latter clause of this statute. This offense is local in its nature. Place is of its essence, and yet no place is alleged but the whole county. A sale of ar dent 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 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."

Boyle's Case, supra, has no particular bearing upon this point, and Young's Case appears to be an authority in favor of the judgment here.

The demurrer was properly overruled.

The Indictment charges the offense to have been committed within "two years last past, " and the accused asked that the commonwealth be required to elect on what day within the two years the offense was committed for which it would prosecute. The refusal of the court to do this is assigned as error.

In support of this assignment, the case of Hatcher & Shaw v. Com., 106 Va. 827, 55 S. E. 677, is relied upon. It was there held that where upon the trial of an indictment containing a single count, charging the defendant with the illegal sale of liquor to certain designated parties "at divers times within the last 12 months, " evidence has been received tending to show a number of distinct sales covering a period of several...