Wilkerson v. Commonwealth

• Decision Date: 21 March 1918
• Citation: 95 S.E. 388
• Court: Virginia Supreme Court
• Parties: WILKERSON. v. COMMONWEALTH.

95 S.E. 388

WILKERSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 21, 1918.

Error to Corporation Court of Norfolk.

Laura Wilkerson was convicted of violating the prohibition act, and she brings error. Affirmed.

Daniel Coleman, of Norfolk, for plaintiff in error. The Attorney General, for the Commonwealth.

WHITTLE, P. The general form of indictment for offenses under the prohibition act (Acts 1916, p. 215) is given in section 7, and in this case the indictment, in substance, is as follows:

" * * * That Laura Wilkerson, within one year next prior to the finding of this indictment, and subsequent to the 1st day of November, 1916, in said city of Norfolk, did unlawfully manufacture, sell, offer, keep, store, and expose for sale, give away, dispense, solicit, advertise, and receive orders for ardent spirits, against the peace and dignity of the commonwealth of Virginia."

Plaintiff in error was tried upon that indictment, and a writ of error was awarded to a judgment, in accordance with the verdict of the jury, imposing upon her a fine of $50 and imprisonment in jail for one month. There are two assignments of error: [1] 1. The first assignment relates to the action of the court in overruling the demurrer to the indictment. The grounds of demurrer are that the indictment is violative of section 8, article 1, of the Constitution of Virginia and section 1, Amendment 14, of the Constitution of the United States, because, with respect to the former, it does not sufficiently inform the defendant of the cause and nature of the accusation against her, and with regard to the latter (in addition to the first ground) that a conviction under it would deprive her of her liberty and property without due process of law.

In Pine and Scott v. Commonwealth, 93 S. E. 652, in an opinion handed down by this court on September 20, 1917, the sufficiency of a similar indictment, objected to upon constitutional grounds, was drawn in question and sustained. Burks, J., after an exhaustive review of the authorities, says:

"The indictment, of course, must charge the offense, and, if it fails to give the information necessary to enable the defendant to concert his defense, such information may be supplied by bill of particulars. * * * A bill of particulars may supply the fault of generality or uncertainty, but not the omission of an essential averment of the indictment. Such being the function of the bill of particulars, it is readily observed that, by giving an...