Williams v. Commonwealth
| Decision Date | 21 November 1949 |
| Citation | 56 S.E.2d 537,100 Va. 280 |
| Parties | WILLIAMS et al. v. COMMONWEALTH. TRIPLETTE v. COMMONWEALTH (two cases). |
| Court | Virginia Supreme Court |
Travis Deleon Triplette was convicted of the illegal transportation of whisky and the whisky was ordered confiscated and defendant appealed to the circuit court The appeals were consolidated with a proceeding by the Commonwealth to condemn the truck in which the whisky was transported, wherein T. H. Williams and another, trading as Williams Motor Company of North Wilkesboro, North Carolina, filed answer claiming a lien on the truck.
The Circuit Court of Wythe County, John S. Draper, J., entered judgment finding defendant guilty of offense charged and ordered condemned truck sold and proceeds of sale and confiscated whisky forfeited to the Commonwealth and defendant and lien claimants brought error.
The Supreme Court of Appeals, Spratley, J., held that Circuit Court properly took judicial notice of regulations of Alcoholic Beverage Control Board and that indorsement of lien on certificate of title to truck issued in North Carolina was insufficient to protect interest of lien claimants and affirmed the judgments and orders.
Stuart B. Campbell, George P. Young, Wytheville, for plaintiffs in error.
J. Lindsay Almond, Jr., Atty. Gen, H. T. Williams, Jr., Junior Atty, Richmond, for Commonwealth.
Before HUDGINS, C.J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
On November 3, 1947, Travis DeLeon Triplette was arrested in Wythe county, Virginia, on a warrant charging him with the unlawful transportation of alcoholic beverages in excess of one gallon, in violation of Virginia Code 1942, Michie, section 4675 (49a) of "The Alcoholic Beverage Control Act of Virginia, " and sections 42, 43 and 44 of the Regulations of the Virginia Alcoholic Beverage Control Board. At the same time, a Ford truck, Motor No. 99 T-908159, bearing North Carolina license No. 892038, occupied or in the possession of Triplette, together with its cargo of 193 cases of whiskey, was seized in pursuance of Virginia Code 1942, Michie, section 4675 (38a).
Upon a hearing before the trial justice of Wythe county, Triplette was found guilty of illegally transporting the said whiskey and the whiskey was ordered to be confiscated. An information was filed in the Circuit Court of Wythe county, praying that the confiscated truck be condemned and sold and the proceeds thereof disposed of according to law. The information, together with appeals from the judgment of conviction of Triplette and the order of confiscation of the whiskey, were duly matured for hearing in the circuit court.
In the proceeding for the condemnation of the truck, T. H. Williams and Mrs. T. H. Williams, trading as Williams Motor Company of North Wilkesboro, North Carolina, filed an answer under oath asserting that they had a "bona fide" first lien on the truck on a "reservation of title contract" dated April 28th, 1947, whereby they "reserved title to the said motor vehicle until the full amount of the purchase price of $1300 was paid;" that there was a balance of $600 due, plus interest, on said contract, evidenced by a promissory, negotiable bond of Triplette; that their contract with Triplette provided that in the event he failed to pay the balance of the purchase price, the vendors could retake possession of the truck, sell it, and apply the proceeds of the sale, so far as necessary, in payment of the balance due on said bond, with interest and costs; that their lien to secure the unpaid purchase money on the truck was recorded on the face of the certificate of title to the truck, issued by the State of North Carolina to Triplette; that they had perfected their lien against the said truck; and that an illegal use, if any, of the truck was without their connivance or consent, express or implied. They prayed that the truck be released to them, or failing in this, that the court recognize and protect their lien to the extent of the amount due thereon.
The certificate of title to the truck was filed with the answer.
By agreement of the parties, the three proceedings, namely, the charge against Triplette, the information against the Ford truck, and the order for the forfeiture of the whiskey found in the said truck, all arising out of the same transaction and involving identical questions of fact and of law, except as hereinafter noted, were consolidated and tried together. All matters of law and fact were submitted to the trial court and heard without the intervention of a jury. The evidence presented was considered as if introduced in each separate case.
The defendants demurred to the evidence, and the Commonwealth joined in the demurrer. Upon consideration, the trial court found Triplette guilty of illegally transporting ardent spirits in excess of one gallon into and through Virginia, and fixed his punishment at a fine of $500 and ninety days in jail, the jail sentence being suspended. It condemned and ordered to be sold the Ford truck transporting the liquor and the proceeds from the sale forfeited to the Commonwealth, and ordered to be confiscated and forfeited to the Commonwealth the alcoholic beverages located on the truck.
The proceedings come before us, in consolidated form, upon three writs of error. The defendants contend that the trial court in overruling their demurrer to the evidence, and entering the above judgment and orders erred in taking judicial notice of the regulations of the Virginia Alcoholic Beverage Control Board, on the ground that it had not been shown that such regulations had been made, published and filed in such a manner as to become effective in Wythe county.
On behalf of the Commonwealth, the following undisputed evidence was introduced:
Triplette, when arrested, was operating a Ford truck loaded with 193 cases of whiskey, enroute from Cairo, Illinois, to North Wilkesboro, North Carolina, travelling on the direct route between the two points. He had in his possession documents showing that "125 cases of Calvert Reserve pints, 25 cases of Four Roses pints, 25 cases of Four Roses half-pints and 18 cases of Old Crow pints" had been purchased by Howard T. Church of North Wilkesboro, North Carolina, from J. B. Wenger, wholesale liquor dealer of Cairo, Illinois. All of the liquor bore Federal Internal Revenue stamps. Triplette had no permit from the Virginia Alcoholic Beverage Control Board to transport the liquor into, within or through Virginia, had not posted a bond for its transportation with that Board, and had no bill of lading or other memorandum of shipment describing the route to be travelled.
It was admitted that Howard T. Church, a resident of North Wilkesboro, North Carolina, had no right, under the laws of that State to receive the shipment. It was conceded that the Federal stamps, which the liquor bore, were all that was necessary to make the sale to him legal in Illinois.
The defendants presented one witness, J. W. Hutton, Clerk of the Circuit Court of Wythe county. Mr. Hutton first testified that neither he nor his deputy clerk had been able to find any regulations of the Virginia A. B. C. Board filed in his office during the past nine or ten years, and that, to the best of his knowledge and belief, no such regulations were on file in his office. He was excused from the stand and later recalled. He then testified that, after a further search, he found on file in the safe in the clerk's office a book entitled "Alcoholic Beverage Acts and 3.2 Beer Law of Virginia, As Amended by The General Assembly 1942; Regulations and Administrative Orders Adopted By The Virginia Alcoholic Beverage Control Board." In addition to the above words, on the outside cover, there was printed, "Richmond: Division of Purchase and Printing 1943." Mr. Hutton further said that he did not know how or when he book got in the clerk's office, and that he did not find it certified in any way.
The book was introduced in evidence and filed as an exhibit. It contains 203 pages. Page 1 bears the title above, the same as on the cover of the book, and page 2 a table of contents. Pages 3 to 68 contain the pro-visions of "The Alcoholic Beverage Control Act." Virginia Code 1942, Michie, section 4675(1) et seq. Pages 69 to 86 contain "The 3.2 Beer and Light Wine Act" and "Other Enactments of the General Assembly Relating to Alcoholic Beverages, etc." Pages 87 to 112 contain the "Regulations of Virginia Alcoholic Beverage Control Board, " including regulations numbered 42, 43 and 44. Pages 113 to 167 contain the "Administrative Orders of the Virginia Alcoholic Beverage Control Board." On pages 128 and 129 is the following certificate (with the effective dates of sections of the regulations eliminated, as being immaterial here):
"Commonwealth of Virginia
Department of Alcoholic Beverage Control Virgina Alcoholic Beverage Control Board "City of Richmond, May 14, 1943.
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