Pine v. Commonwealth

93 S.E. 652, 121 Va. 812, 1917 Va. LEXIS 76

• Court: Court of Appeals of Virginia
• Decided: September 20, 1917
• Status: Published

Opinions

Burks, J.,

délivered the opinion of the court.

The plaintiffs in error were indicted, tried and convicted under the prohibition act (Acts 1916, p. 215). The indictment was framed under section 7 of the act, which, so far as necessary to be quoted, is in the following words:

“Sec. 7. While any good and sufficient indictment may be used, an indictment for any first offense under sections three, four and five, of this act, shall be sufficient if substantially in the form or to the effect following:

“ ‘State of Virginia,

“ ‘County of............to-wit :

“‘In the circuit court of..............county:

“ ‘The grand jurors in and for the body of said county of............and now attending said court at its .... . .term, nineteen......, upon their oaths, do present that ......within one year next prior to the finding of this indictment, in the said county of ......, 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.’ ”

The indictment contains but one count, and that is in the language of the statute. The defendant demurred to the indictment, but their demurrer was overruled, and this action of the court is assigned as error. The demurrer raised the question of the constitutionality of the act. One of the grounds of unconstitutionality is that it violates section 62 of the Constitution, hereinafter quoted. There is nothing in the record to indicate that this objection was made in the trial court. It was not made in the petition for the writ of error, nor referred to in the brief for the Commonwealth, but was made for the first time in the reply brief for plaintiffs in error. This, however, is immaterial. Every indictment is based upon the existence of a valid law annexing a penalty to the offense charged. If that law is unconstitutional, it is void. It is no law at all, and there is no penalty to inflict. So soon, therefore, as this fact is brought to the attention of the court in any way, whether by demurrer, pleas, motion, or otherwise, the case is at once dismissed, as there is no offense to be punished. It need not be specially pleaded. This rule applies to the appellate court as well as the trial court, although the point is made in the appellate court for the first time. Adkins v. City of Richmond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583, 81 Am. St. Rep. 705, and cases cited.

The constitutionality of the act is challenged on the ground that the whole legislative power over intoxicating liquors is declared by section 62 of the Constitution, and that under the rule, expressio unius est exclusHo alterius, the granting of certain powers is the exclusion of all others. What powers the legislature has exercised which have not been granted have not been pointed out. The clause of the Constitution referred to is as follows:

“The General Assembly shall have full power to enact local option or dispensary laws, or any other laws, controlling, regulating, or prohibiting the manufacture or sale of intoxicating liquors.”

The maxim, expressio unius e<st exclusio alterius, though often of importancé and value, is not of universal application, even in the interpretation of State Constitutions. They are the fundamental, permanent law of the land, providing for the future as well as the present, and should carry out the principles of government as gathered from the instrument. when read as a whole. The application of arbitrary rules of construction will be resorted to with hesitation, especially when it would bring about results contrary to the declared public policy of the State, and hamper the legislature in amply providing for the health, morals, safety and welfare of the people. Only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned, in view of the known policy of the State, will be considered as prohibiting the powers of the legislature. The principle of the maxim should be applied with great caution to those provisions of the Constitution which relate to the legislative department, and the exclusion should not be made unless it appears to be a plainly necessary result of the language used. Schubel v. Olcott, 60 Ore. 503, 120 Pac. 375; State v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L. R. A. 153; Sumpter v. Duffie, 80 Ark. 369, 97 N. W. 435; State v. Bryan, 50 Fla. 293, 39 So. 929.

In determining whether an act of the legislature is forbidden by the State Constitution, it must be borne in mind that the Constitution is not a grant of power, but a restriction upon an otherwise practically unlimited power; that the Constitution is to be looked to, not to ascertain whether’ a power has been conferred, but whether it has been taken away; that the legislature is practically omnipotent in the matter of legislation, except in so far as it is restrained by the Constitution, expressly or by plain, or (as some of the cases express it) by necessary, implications; that the mere enactment of a law is a legislative declaration of the necessary constitutional power, which is entitled to great respect from a co-ordinate department of the government; that every act is presumed to be constitutional until the contrary is made plainly to appear, and that all doubts on the subject are to be solved in favor of its validity. These principles and these presumptions are not of mere local application, but are common to practically all of the States. Authority is so abundant as to be easily found, and it would unnecessarily burden this opinion to do more than cite a few of the late cases by way of illustration. Button v. State Corporation Commission, 105 Va. 634, 54 S. E. 769; Henry's Case, 110 Va. 879, 65 S. E. 570, 26 L. R. A. (N. S.) 883; McGrew v. Mo. Pac. R. Co., 230 Mo. 496, 132 ; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251; People v. Prendergast, 202 N. Y. 188, 95 N. E. 715; Imp. Irr. Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914 B, 322; Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915 B, 247, Ann. Cas. 1915 A, 772; State v. Patterson, 181 Ind. 660, 105 N. E. 228; Eckerson v. Des Moines, 137 Iowa 452, 115 N. W. 177; Bullitt v. Sturgeon, 127 Ky. 332, 105 S. W. 468, 14 L. R. A. (N. S.) 268; Evers v. Hudson, 36 Mont. 135, 92 Pac. 462.

On no subject have the legislatures been given a freer hand than in dealing with intoxicating liquors. It has been so far regarded as an enemy of mankind that the most drastic legislation to suppress its use by the public has been upheld by the courts. We cite a few cases simply as illustrations : Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; James Clark Distilling Co. v. Western Mo. R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917 B, 1218; Express Co. v. Whittle, 194 Ala. 406, 69 So. 652, L. R. A. 1916 C, 278; Delaney v. Plunkett (Ga.) 91 S. E. 561; State v. Phillips, 109 Miss. 22, 67 So. 651, L. R. A. 1915 B, 530; Glenn v. Southern Express Co., 170 N. C. 286, 87 S. E. 136. For collection of cases, see 17 Am. & Eng. Ency. Law (2d ed.) 207, et seq.

In this State, from the earliest date to the adoption of the present Constitution, the legislature has exercised uncontrolled power over the manufacture and sale of intoxicating liquors, and since local option and dispensary laws have come into vogue, has exercised undisputed authority and control over these subjects also. In view of these facts, it would require very plain language to convince us that it was the purpose of the constitutional convention to take away from the legislature of this State a power exercised by the legislatures of the other States of the Union, and one that has been within the province of the legislature of this State from the earliest date.

The constitutional provisions' relating to the legislative department have been classified as mandatory and prohibitive. The oaths of the. legislators bind them to the performance of the one, and the courts restrain them from the performance of the other, if they should overstep the limits set. As to all other powers they are free to act as their judgments dictate.

“In the partition of power between the three departments of government, the power of making laws is conferred on the General Assembly; some laws they are compelled by mandate to make; other laws they are forbidden to make; these are the only limits to their powers; all subjects of legislation not affected by mandate, nor by prohibition, are within the discretion of the General Assembly.” Commonwealth v. Drewry, 15 Gratt. (56 Va.) 1, 5..

As the legislature has all legislative power not taken away by the Constitution, it would seem that the classification into mandatory and prohibitive provisions was in the main correct. Constitutions, however, sometimes contain other provisions relating to or affecting the legislative department, which may be classified as either permissive or declaratory. This is especially true of modern Constitutions which enter into greater detail and more nearly approximate legislation than formerly. Indeed, some of their provisions are purely legislative in character. When the Constitution has fully dealt with a subject and covered, the entire ground, the legislature would be powerless to make any change in it, unless specially authorized to do so, and it may be desirable to confer such authority. In such case the authority is conferred by a permissive grant in the Constitution. McGurdy v. Smith, 107 Va. 757, 60 S. E. 78; Constitution 1902, secs. 89, 95, 100, 101. In other cases the constitutional provision is only declaratory of the existing law, and there may or may not be annexed to it a prohibitory provision. For example, section 47 declared that, “Each house shall judge of the election, qualification, and returns of it’s members; may punish them for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” There is no grant of power here that did not exist before, nor does the declaration of the power inhibit the house from exercising other powers, such as the suspension of a member, or the imposition of a penalty for neglect of duty, but he cannot be expelled by less than a two-thirds vote. Again, that portion of section 175 of the Constitution which declares, “but the General Assembly may, from time to time, define and determine such natural beds, rocks or shoals, by surveys or otherwise,” conferred no power on the General Assembly which it did not possess before, but is. simply declaratory of the existing law.

The presumption is that the same meaning attaches to a given word or phrase which is repeated in a Constitution, unless the contrary is made to appear, and hence the whole instrument should be examined to ascertain what that meaning is. Green v. Weller, 32 Miss. 650. There are but four sections of the Constitution containing the phrase “The General Assembly shall have power.”' These are sections 100, 101, 62 and 84. The first two plainly belong to the class of permissive provisions, and were necessary to enable the legislature to act on the subject at all. The convention had dealt fully with the whole subject of courts, and marked out a complete system, and if this was to be changed in any way, it was necessary for the Constitution to provide that, “The General Assembly shall have power” to make the change. Hence, the provisions permitting the legislature to establish courts of land registration, and to confer certain jurisdiction upon clerks of circuit courts. Section 86, however, is purely declaratory of the existing law, and conferred upon the legislature no power not previously possessed by it. That section declares, “The General Assembly shall have power to establish and maintain a Bureau of Labor and Statistics, under such regulations as may be prescribed by law.” The word “bureau” means, “A subordinate department, or a division of a principal department;” “A department or force of men transacting a particular branch of public business.” Standard Diet., Bouvier’s Law Diet.; Button v. State Corp. Com., 105 Va. 634, 639-40, 54 S. E. 769. These definitions show that the word “bureau” is used to express the same idea as that commonly expressed in the legislation of this State by the word “board,” as for example, the “board of education.” If the maxim, expressio unius est excusio alterius, be applied to this section, then the power conferred to establish a “Bureau of Labor” excludes the idea of any other bureau, and the legislature would be powerless to establish a bureau of charities and corrections, a bureau of fisheries, a bureau of game, a legislative bureau, a bureau of printing, or of highways, and probably of education; and, indee, of any other subjects. Yet all of these bureaus or boards have been established long ago, and during the fifteen years the Constitution has been in operation, there has not been even an intimation that the legislature did not have power to establish them. The conclusion is almost irresistible that no objection has been raised simply because there was no foundation for it. The section is clearly simply declaratory of the existing law.

The only remaining section containing the phrase, “The General Assembly shall have power” is section 62. It differs slightly, but significantly, from the phrase contained in the other sections. In order to avoid the idea of a limitation to any extent whatever on the legislative power, it declares that the General Assembly shall have full power. No new power whatever is conferred upon the legislature. It does not authorize the enactment of a single law the legislature might not have enacted if the section had not been adopted. It is simply declaratory of the existing law, but thereby inviting attention to the subject. At the time of its adoption there had been no abatement in the zeal of temperance advocates, and there is nothing to indicate an intention on the part of the State to release its power over the whole subject of intoxicating liquor. It is not to be presumed that the convention, while declaring that the General Assembly had “full power” over the subjects mentioned in the section, meant by its silence to take away a power that had existed from the foundation of the government. No language used takes from the legislature full power and authority over the whole subject, but a rule of construction is invoked to take it away by implication. We are unwilling, under the circumstances, to imply a revocation of a power of such long existence. If the convention had desired to restrain the legislature in this matter, after so great a lapse of time, we are satisfied it would have done so in express terms. Certainly we are unwilling to imply such restraint. ' Generally, when the convention has desired to place a restraint upon the legislature, it has done so expressly, as by providing that the General Assembly shall not charter a church, pass a bill of attainder, ex past facto law, law impairing the obligation of a contract, applying a religious test, authorizing a lottery, or the like. In the instant case, complete authority over the whole subject of intoxicating liquors has not been taken away from the legislature by an express provision, nor do we think it results by necessary implication.

This view of the nature of section 62 of the Constitution is confirmed by the debtes thereon in the convention. During the discussion of a motion to strike the section out, Mr. B. Walton Moore said: “This morning I inquired of some of the members of the committee, including the chairman, if any question seemed to exist as to the power of the General Assembly to enact a dispensary system, unless authorized by the Constitution. They answered in the negative.” Mr. Quarles said he had seen in the press that some circuit court had held a dispensary law unconstitutional and he wished to remove all doubt on the subject. Proceeding further to insist on the retntion of the section, he said: “What harm will it do'? Why should not every doubt about the question whether or not the legislature has full power to deal with this matter be removed ? It may do some good and I think it will; it certainly can do no harm. I think the legislature has the power already, but I may be wrong.” Thereupon, the section was adopted. Debates Constitutional Convention, pages 2751-2.

The court is of opinion that the purpose of the act is a wise one, but even if it were of a different opinion, it could make no difference in the result so long as it is within the legislative power, for judicial opinions of expediency cannot be substituted for the will of the legislature when constitutionally expressed. As said in Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184: “It is also well established that, when a State exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623; Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323; Ah Sin v. Wittman, 198 U. S. 500, 504, 25 Sup. Ct. 756, 49 L. Ed. 1142; New York, ex rel. Silz V. Hesterberg, 211 U. S. 32, 29 Sup. Ct. 10, 53 L. Ed. 75; Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153. With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the legislature, a notion foreign to our constitutional system.”

We are of opinion that the provisions of the act of Assembly approved March 10, 1916 (Acts 1916, page 215), commonly known as the prohibition act, so far as called In question in this case, are not forbidden by section 62 of the Constitution of this State.

Counsel for plaintiffs in error cited State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, as authority for the position that the prohibition statute in this State is unconstitutional. In that case the Constitution of West Virginia declared that, “Laws may be passed regulating or prohibiting the sale of intoxicating liquor within this State.” Const., Art. 6, sec. 46. The legislature of West Virginia enacted a statute making it a penal offense to “solicit or receive orders for, or keep in his possession for another” (Code 1887, chap. 32, sec. 1, as amended by Laws 1887, chap. 29), intoxicating liquors. The court held that the act was in conflict with both the federal and State Constitutions, and was therefore void. The decision was made in 1889, and is not in consonance with the authorities hereinbefore cited, most of which are of much more recent date. For this reason we are unable to follow it.

Another objection to the indictment is that it contains, but one count, and yet it charges many offenses, and that it does not inform the defendant of “the cause and nature of his accusation.”

The act covers thirty printed pages and abounds in offenses created and penalties imposed. Section 3 of the act defines about one dozen specific crimes, and section 5 declares that any person who shall violate any provision of this act, shall, except as otherwise herein provided, be deemed guilty of a misdemeanor. Section 7, as we have seen, declares that “while any good and sufficient indictment may be used, an indictment for any first offense under sections three, four and five of this act, shall be sufficient if substantially in the form or to the effect following.” The allegation, therefore, that the single count charges more than one offense is fully sustained. All of the offenses charged, however, are- misdemeanors. It has been held more than once in this State that, while any number of misdemeanors of the same nature and punishable in the same manner may be charged in the same indictment, there must be a separate count for each offense, and that a defendant cannot be convicted of more offenses than there are counts. Mitchell’s Case, 93 Va. 775, 20 S. E. 892; Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677. If the defendant cannot be “convicted of more offenses than there are counts” in the indictment, it follows that he cannot be lawfully charged with more than one offense in a single count.

We have no disposition to detract from anything said in the cases cited, but they must be read in the light of the conditions existing when they were rendered. At that time there was no statute on the subject, and they announce the principle existing in the absence of statutory regulation. The act under consideration in effect declares that more than one offense arising under the statute may be charged in a single count. The power of the legislature to change rules of procedure is unquestionable, except as restrained hy the Constitution, and we can see no good reason why it may not provide that what has heretofore required several counts in an indictment may now be accomplished by a single count, provided the prisoner is not unlawfully prejudiced thereby. If the prisoner is not prejudiced, it is a matter of mere procedure and clearly within the province of the legislature. The prisoner is not so prejudiced if he is fully put upon notice of the cause and nature of the offense with which he is charged, and is afforded ample opportunity to make his defense.

It is claimed by the plaintiffs in error that the constitutional provision, “that in all criminal prosecutions a man hath the right to demand the cause and nature of his accusation” (Const. 1902, sec. 8), has been ignored. It is a fundamental proposition that in all cases, civil as well as criminal, a person haled into court has the right to demand that he be told in plain, intelligible language what is the cause of the complaint against him; and this right, in so far as it relates to crimes, is guaranteed by both the federal and State Constitutions; the federal Constitution, applicable to prosecutions by the. United States, declaring that, “In all criminal prosecutions, the accused shall enjoy the right to * * * be informed of the nature and cause of the accusation” (amendment VI), and the State Constitution, “That in all criminal prosecutions a man hath the right to demand the cause and nature of his accusation.” (Va. Const., sec. 8.) It will be observed that the language of the two Constitutions is substantially the same. We have no case in Virginia defining what is meant by “cause and nature of the accusation,” but it is very clearly set forth by Chief Justice Waite in United States v. Cruikshank, 92 U. S. 543, 23 L. Ed. 588. Paragraph 12 of the syllabus in that case, taken almost literally from the opinion, is as follows:

“In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged; and every ingredient of which the offence is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading, that, where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the of-fence in the same generic terms as in the definition, but it must state the species — it must descend to particulars. The object of the indictment is — first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.”

After thus stating the law, the Chief Justice gives a number of instances of allegations deemed too vague and uncertain, and says: “The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea; and the court that it may determine whether the facts will sustain the indictment.”

To the same effect is Head’s Case, 11 Gratt. (52 Va.) 819, and Arrington’s Case, 87 Va. 96, 12 S. E. 224, 10 L. E. A. 242, holding that the indictment must always allege the offense with such fullness and precision that the defendant may know for what he is prosecuted, and thereby be enabled to prepare his defense, and that the conviction or acquittal may be pleaded in bar of any future prosecution for the same offense. The subject is discussed with ability by Downey, C. J., in McLaughlin v. State, 45 Ind. 338. In State v. Terry, 109 Mo. 601, 19 S. W. 206, Sherwood, C. J., goes into the subject very fully, and discusses it with ability. In that case the legislature of Missouri had passed a statute on the subject of obtaining money by false pretences and authorized a brief form of indictment without giving the necessary details of the offense. Commenting upon the indictment prescribed by this statute, the Chief Justice said: “The legislature may change it in form, but cannot change the substance of its material averments, without impinging upon constitutional guaranties.”

Referring to the provision of the Bill of Rights of that State, similar to the Bill of Rights in. this State, declaring that a man has the right to demand the cause and nature of his accusation, he said: “The right to make such a demand is just as great, just as mandatory, as any other of the kindred rights grouped together in the same section of the Constitution. So that the simple question is here presented, does an indictment which follows the statutory form prescribed, and uses the precise language set forth in the section quoted, meet with the requirements of the Constitution? * * * But the ‘nature and cause' of an accusation are not stated where there is no mention of the full act, or series of acts, for which the punishment is to be inflicted.”

In 1 Arch. Crim. Pl. & Pr. 88, it is said: “The principal rule as to the certainty required in the indictment may, I think, be correctly laid down thus: That where the definition of an offense, whether by a rule of common law or by a statute, includes generic terms (as it necessarily must), it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but it must state the species, it must descend to particulars.” To the same effect see Mears v. Com., 2 Grant. Cas. (Pa.) 385; Com. v. Phillips, 16 Pick. (Mass.) 211; U. S. v. Hills, 7 Pet. 142, 8 L. Ed. 636; United States v. Cook, 17 Wall. 174, 21 L. Ed. 538; State v. Learned, 47 Me. 426; 1 Chitty Cr. Law, 170; 1 Bishop Cr. Pr., secs. 81, 86, 88, 519.

Tested by the doctrine of these cases, the indictment under consideration, standing alone and unaided by the particulars of the offense, is, in some of its aspects, plainly insufficient. For instance, by section 3 of the act it is made an offense to “transport” for sale ardent spirits, and yet the indictment, under section 7, nowhere mentions “transport” as one of the offenses of which evidence may be offered. Section 3 makes it an offense to “advertise” for sale, or to “aid in procuring ardent spirits” without stating the facts constituting the offense; and by section 4 it is made an offense to act as “agent” or “employee” in certain instances, without stating the facts showing such agency or employment; but these various offenses may be committed in different ways. In fact, there may be serious conflict as to whether a given act amounts to advertising, or amounts to aiding, or to acting as agent or employee, in all of these cases. We have but to look to section 19 of the act on the subject of advertising to show the various kinds of acts which may be done and which are punishable as violations of the act, and yet the indictment gives the defendants no notice of them. Ordinarily, the acts done should be charged, in order to give the defendant the necessary information. It is the function of an indictment to charge facts and not legal conclusions. Bishop’s Case, 13 Gratt. (54 Va.) 785. The indictment undertakes to charge the defendant with all of the first offenses under sections 3, 4 and 5 of the act, but does not fully inform the defendant “with clearness and certainty” of the “cause and nature of his accusation.”

While the Constitution guarantees to every man the right to demand “the cause and nature of his accusation,” it does not prescribe the manner in which this demand shall be complied with. It does not require that it shall be by indictment, or in any other prescribed manner. It may be by presentment or information, or in any other manner the legislature may provide. Furthermore, the right guaranteed by the Constitution is the right to demand “the cause and nature of his accusation.” If he does not choose to demand it, he is under no obligation to do so. It is a right that he may waive if he chooses, and which he will be held to have waived unless he asserts it.

We have no case in this State involving the right to demand a bill of particulars of either the Commonwealth or the defendant in a criminal case, but the practice is a common one in a great majority of the States, and also in the federal courts. 22 Cyc. 371-2, and cases cited. In Mathis v. State, 45 Fla. 46, 34 So. 287, a very comprehensive review of the authorities is given, but it is not deemed necessary to refer to or discuss them further than to say that, in a number of the cases referred to, it is said that the granting of a bill of particulars lies in the discretion of the trial court whose ruling on the subject is not subject to review. In many cases this is probably true, but it is not true where the charge in the indictment is too general and indefinite to appraise the defendant of the cause and nature of his accusation, without the aid of some sort of specification, or a bill of particulars. Wherever this is the case it is reversible error for the trial court to refuse to require such particulars to be furnished.

Except in the single case of an indictment under the prohibition law, the law of this State is that there cannot be more offenses than there are counts in the indictment, and, if the Commonwealth offers evidence of more than one, the proper practice is for the defendant to ask the court to compel the Commonwealth to elect to which one it will prosecute. Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677.

The right to call for, and the duty to furnish, a bill of particulars in civil cases is of frequent application, and is regulated by section 3249 of the Code. The statute confers the right “in any action or motion,” and declares how it may be enforced. We do not think that this statute was intended to apply to a criminal prosecution, but the right is inherent in the trial court in the orderly administration of justice, to prevent wrong and injustice to. persons who are presumed to be innocent, and to assure to them their constitutional rights. State v. Lewis, 69 W. Va. 472, 72 S. E. 475, Ann. Cas. 1913 A, 1203. It is not to be presumed that less particularity is required in a criminal prosecution than in a civil action. The object of the bill is to state with greater • particularity than is done in the indictment “the cause and nature of his accusation.” 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 a bill of particulars; but if the offense is not charged in the indictment, the defect cannot be supplied by a 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 absolute right to demand it, the indictment may be greatly simplified, as is done in the present instance, and at the same time no injury or injustice be done to the accused.

The language of the indictment is comprehensive enough to embrace the offenses intended to be charged, but as to some of these is not specific enough to give to the defendants the information to which they are entitled. Prior to the statute, every misdemeanor enumerated in the statute might be charged in separate counts in one indictment, but each count would have to set out the offense with requisite certainty. The change made by the statute consists in allowing all of the offenses to be charged in one count, instead of many counts, but whether charged in one or many, either the indictment itself must inform the defendant of the cause and nature of his offense, or this information must be furnished in some other way if demanded. If it is not given in the indictment, and no other method is provided for giving the information, the defendant will be denied his constitutional right. The same section of the Constitution which gives to him the right to demand the cause and nature of his accusation, also gives to him the right to a jury trial. He is as much entitled to one as to the other. If a jury trial is denied in the administration of criminal law, it is as much a violation of the constitutional right of the defendant as if it had been denied by statute. Hence, if the frame of the indictment under section 7 be upheld, as we think it should be, then the defendant must, in some other way, in proper cases, when demanded, be informed of the cause and nature of his offense, else he will be denied a constitutional right by the manner in which the statute is administered. We cannot look to the evidence and say that the defendant has not been injured by a denial of this right. As well might we say that if a defendant was clearly guilty and a jury trial had been refused, no injury has been done him. A denial of a constitutional right is of itself reversible error. We suppose that no one would doubt that however guilty a defendant might be, if the trial court denied- him a jury trial, its judgment would of necessity have to be set aside. It is no greater hardship to require the Commonwealth to give the prisoner such information of the offense charged against him as will enable him to prepare to meet the charge than it is to require' a private litigant to furnish like information to his opponent. The act under which the defendants were indicted requires that it shall have a liberal construction, and we think we have given it such a construction in upholding the sufficiency of section 7. We have not in any way marred its efficiency by requiring a bill of particulars stating the nature of the offense in proper case, when demanded. As pointed out by Judge Buchanan in Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677, all of the jurors may think that the accused is guilty and so find him, without having in fact agreed that the evidence as to any particular sale was sufficient,” when in fact the prisoner is entitled to a unanimous verdict on every offense charged. Whether or not he shall be tried for more than one offense is to be determined by other considerations, which involve the doctrine of election.

The subject of election has been discussed in a number of cases before this court, some of them misdemeanors and some felonies. Dowdy’s Case, 9 Gratt. (50 Va.) 727, 60 Am. Dec. 314; Lazier’s Case, 10 Gratt. (51 Va.) 708; Anthony’s Case, 88 Va. 847, 14 S. E. 834; Lewis’ Case, 90 Va. 843, 20 S. E. 777; Benton’s Case, 91 Va. 782, 21 S. E. 495; Mitchell’s Case, 93 Va. 775, 20 S. E. 892; Johnson’s Case, 102 Va. 927, 46 S. E. 789; Fletcher’s Case, 106 Va. 840, 56 S. E. 149; Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677; Disc’s Case, 110 Va. 907, 67 S. E. 344. It is unnecessary to examine these cases in detail. Many of them are cases which involved but a single offense, charged in different ways; some of them involved more than one offense ; but in none of them has it been held that if more than one offense has been charged in the indictment, the prisoner will be compelled to go to trial on all, where it is made to appear that they are so separated by time and circumstance that it would confuse and disconcert him in preparation for the trial, or the jury in consideration of the case.

As time is not of the essence of a felony, it cannot generally be told from the face of the indictment whether or not the defendant would be prejudiced by trying Mm for the several offenses charged in the different counts of the indictment. Each count, in theory at least, is for a separate and distinct offense, while, in fact, it may be but one offense so charged as to meet the different phases of the evidence as it may appear on the trial. It would seem, therefore, that the objection to the charge of more than one offense in the same indictment cannot, as a rule, be raised by demurrer. Neither can it be raised by motion in arrest of judgment, for the fact of difference in the offenses charged would not appear of record. The proper method seems to be by motion to quash (Dowdy’s Case, supra), though the Commonwealth might be required to elect on which one it would proceed.

There is no reason on principle, however, why even two felonies of the same nature and punishable in the same manner may not be charged in different counts of the same indictment. Thus, where two men are killed in a single fight and the witnesses are the same, so that hé could not well introduce the testimony as to one without that as to the other, the prisoner could not be confused, and there Is no reason why the two offenses may not be united In the same indictment and tried at the same time. Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208.

In Hatcher & Shaw's Case, 106 Va. 827, 55 S. E. 677, there was but a single count in the indictment, charging the defendants with selling liquor without license to four persons, who were named, and others, “on the-day of March, in the year 1906, and at divers other times within the twelve months last past," and under that count evidence had been admitted tending to show a number of distinct sales running over a period of several months. At the conclusion of the Commonwealth’s evidence, the defendant made a motion to require the Commonwealth to elect upon which sale it intended to rely for a conviction. This motion the trial court overruled. In commenting upon this feature of the case, this court said: “While a party may be tried upon the same indictment for several misdemeanors of the same nature and upon which the same or similar judgments may be rendered, there must be a separate count for each offense, for he cannot be convicted of more offenses than there are counts. 1 Bish. New Proc., section 460; Mitchell’s Case, 93 Va. 775, 20 S. E. 892.

“This being so, it would seem clear upon principle that the defendants had the right to have the Commonwealth make an election. Because of the difficulty the Commonwealth has in prosecuting offenses of this kind, or for some other reason, there has been in this class of cases some relaxation of the strict rules as to pleading and the introduction of evidence which generally prevail in criminal cases. When under these relaxed rules the Commonwealth has been allowed to allege, and to offer evidence to prove, more than one offense, there does not seem to be any reason why, at the conclusion of the Commonwealth’s evidence and before the defendant offers his evidence, it should not be required to elect upon which sale it seeks a conviction. By requiring such an election the prisoner knows what charge it is necessary for him to meet in making his defense. This in common fairness he has a right to know. Such a course also saves time and expense by rendering it unnesessary for the defendant to offer evidence to disprove any other charge. It brings the mind of the jury to the consideration of a single sale. Another reason why the Commonwealth should be required to elect where evidence has been introduced as to a number of offenses, and there can only be a conviction as to one sale, is that some of the jurors may believe that the evidence of a particular sale is sufficient to convict, while others may think the evidence of that sale is not sufficient, but- are satisfied that some other sale has been proved. All of the jurors may think that the accused Is guilty, and so find him, without in fact having agreed that the evidence as to any particular sale was sufficient. The result is that if there is no election the accused, who is indicted for one offense, is tried for many and convicted of. one, but of which one of the many the court cannot say.

“It may be that juries are not likely to be so careless as to bring in a verdict without an agreement of the part of all as to a particular sale, but it is a danger which can be avoided by requiring an election.”

This case has been cited, with approval, a number of times. In Dix’s Case, 110 Va. 907, 67 S. E. 844, referring to the subject of election, the statement of Mr. Bishop is again approved, that “the better view seems to be that that question should be left to the discretion of the trial judge, to be exercised with reference to the special facts of the case.” Both of these cases were indictments for misdemeanors.

Inasmuch as the statute under which the defendants were indicted permits more than one offense to be charged in a single count, we do not think that the defendants had the absolute right to demand of the attorney for the Commonwealth that he should elect for which of the several offenses he would prosecute. He might desire to prosecute for more than one. It was a matter resting in the sound discretion of the trial court whether or not an election should be compelled. This was to be determined by considerations entirely different from those which give the right to a specification of the particulars of the offense.

Specification, or a bill of particulars, is allowed in order to apprise the defendant of “the cause and nature of his accusation,” when the indictment is not sufficiently specific for that purpose; election, to avoid embarrassing him in making his defense after he has been apprised of the particulars of the several offenses charged.

On account of the gravity of the punishment, this court has been more particular in compelling election in felony cases than in misdemeanors, but the same principle would seem to apply in the one case as in the other. While the Commonwealth must be permitted to charge an offense in various ways to meet the evidence as it may be adduced on the trial, if, by reason of charging several distinct offenses widely separated by time, place and circumstances, the de-r fendant will be seriously embarrassed in making his defense, whether the offense be felony or misdemeanor, the election should be compelled.

Upon a review of the cases and a consideration of the principle involved, we deem it best, where several distinct misdemeanors are charged in the same indictment, to leave it to the sound discretion of the trial court to determine whether or not there shall be an election, only remarking that where the evidence offered of one transaction is widely separated by time, place and circumstances from that offered of another transaction, so that the prisoner would be embarrassed in making his defense if compelled to try both at the same time, the Commonwealth should be compelled to elect on which one it will proceed.

Although the Commonwealth is active in the suppression of crime, and prompt and vigorous in its punishment, it is very jealous of the liberty of the citizen, and throws around him every safeguard of a fair and impartial trial. It gives him the “right to demand the cause and nature of his accusation,” thereby assuring him of all needful information of .the offense with which he is charged; it guarantees to him “a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty,” thereby assuring him a prompt trial, an impartial tribunal and a just verdict; and it warns the jury that they are not to convict unless satisfied of the guilt of the accused beyond, a reasonable doubt. It has been hereinbefore pointed out that some of the offenses charged in sections three and four of the act are not sufficiently described m the indictment, and if the defendants had demanded a more specific statement of the “cause and nature” of their offense, and it had been refused, the Commonwealth would have been limited in its proof to those that were adequately described, and proof of other offenses would have been a denial of the constitutional right to demand “the cause and nature” of their offense. But in the instant case, no such demand was made, and it is not disclosed by the record that any right was denied them, or that any injustice has been done them.

A number of cases have been cited by the learned Attorney General to the effect that it is sufficient to charge a statutory offense in the language of the statute defining it, but they have no application to an omnibus charge of numerous offenses, all of which could not have been committed by one person at the same time, and which leaves the defendant in doubt and uncertainty upon which a conviction will be asked. State v. Terry, supra; United States v. Cruikshank, supra.

It is also said that section 7 of the act under consideration was taken from the West Virginia statute, which has been held to be a valid enactment by the Supreme Court of that State, and it has been argued by the Attorney General that by adopting the act of West Virginia the legislature also accepted the construction thereof by the Supreme Court of that State, including the determination of its validity and sufficiency. But it has been recently held by this court: “While the interpretation by the highest court of a State from which a statute is taken will be followed, the legislature cannot, by enacting a statute which has been held constitutional and valid by the highest court of another State, deprive the courts of this State of the right to determine for themselves the constitutionality of such statute.” Boyd v. Ritter Lumber Co., 119 Va. 348, 89 S. E. 273.

On the trial of this case, after the Commonwealth had introduced two witnesses, Viola Ross and Mary Williams, who testified that they had bought the liquor with which they were made drunk from the defendants, and that they had also bought liquor from J. T. Thompson, the defendants offered J. T. Thompson as a witness, and proved by Thompson that the two prosecuting witnesses had not bought any liquor from him. The defendants then offered to prove by Thompson that the two prosecuting witnesses, Viola Ross and Mary Williams, broke open his house while he was at church, broke into his trunk and took out a gallon of whist key. The Commonwealth’s attorney objected to this testimony as being irrelevant, and the court sustained the objection, and refused to allow the defendants to introduce that evidence. This action of the trial court is assigned as error.

There was no error in the ruling of the court. The charge against the defendants was the sale of intoxicating liquor, and this charge was sustained by the evidence of the two witnesses mentioned. Evidence that the same two witnesses broke into the house of the witness Thompson, and stole a gallon of whiskey, and were afterwards found drunk, was wholly irrelevant to the offense with which defendants were charged; and the larceny alleged threw no light on the illegal sale. Both charges may have been true.

Objection is also made to the ruling of the trial court in granting and refusing instructions. Instructions “A” and “B,” given for the Commonwealth, were as follows:

“A.” “The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendants, John Pine and Sarah Scott,' or either of them, had in their, or his. or her possession, in their, or his, or her home, as the case may be, in the city of Roanoke, Virginia, at any time within the time laid in the indictment in this case, more than one gallon of distilled liquor, or more than three gallons of beer, that this would be prima facie evidence that the said defendants, or the one so in possession of such distilled liquor, or beer, had the same for sale, although the jury may further believe from the evidence that said defendants, or the one so having in his or her possession, such distilled liquor or beer, acquired the same prior to November 1, 1916.

“The punishment for such an offense is by a fine of not less than $50.00 nor more than $500.00, and confinement in jail for a period of not less than one, nor more than six months.”

“B.” “The court instructs the jury that it is not alone an actual sale of ardent spirits, that constitutes an offense under the law, under which this indictment is drawn, but it is also an offense for a person to keep or store for sale, or to give away, or dispense ardent spirits under said law except in the manner therein provided; therefore, the court tells the jury, that although they may not believe from the evidence in this case that the defendants, or either of them, sold ardent spirits within the time mentioned in the indictment in this case, yet, if they do believe from the evidence in this case, beyond reasonable doubt, that the said defendants, or either of them, during the time laid In the indictment in this case, kept or stored ardent spirits for sale, or to give away, or dispense, as is alleged in the indictment, then they, or the one so keeping or storing for sale such ardent spirits, or to give away or dispense the same would be as guilty under the indictment in this case, as if they, or either of them, had actually sold or given away ardent spirits.”

Instruction “A” is in substantial conformity with section 65 of the prohibition act (Acts 1916, p. 215), and is free from objection. The act on this point makes no distinction as to the time of acquisition of the ardent spirits, but declares that the possession shall be prima, facie evidence of a “purpose of sale.” It merely establishes a rule of evidence. That such rules may be established by the legislature is well settled both here and elsewhere. Runde v. Commonwealth, 108 Va. 873, 61 S. E. 792; Commonwealth v. Austin, 97 Mass. 505; Frudic v. State, 66 Neb. 244, 92 N. W. 320; State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794; Leavitt v. Baker, 82 Me. 26, 19 Atl. 86.

Instruction “B” told the jury, amongst other things, that if they believed that the defendants kept or stored ardent spirits for sale or to give away they would be as guilty as if they had actually sold or given away ardent spirits. Under different circumstances this instruction would be misleading, if not erroneous, as section 61 of the act allows one in his own home to give away ardent spirits “when the quantity of such spirits shall not exceed the quantity allowed by this act.” But instructions must be read in the light of the evidence offered on the trial. In the instant case, the evidence was of a sale and not of a gift, and at a restaurant and not in a home. The sale, if made, was illegal, no matter where made, or whether the ardent spirits were obtained before or after November 1, 1916, when the prohibition act went into effect. The instruction, therefore, could not have misled the jury.

Instruction No. 1, asked for by the defendants, was as follows:

“1. The court instructs the jury that if they believe from the evidence that the defendants had the liquor in their possession prior to November 1,1916, at which time the present liquor law came into effect, then such possession creates no presumption against them.”

The defendants could not have been injured by the refusal of this instruction, if it be conceded to be a correct statement of the law, as instruction 2, given at their instance, stated the law as favorably to them as they were entitled to. That instruction was as follows:'

“The court instructs the jury that if they believe from the evidence that the defendants purchased the liquor prior to November 1, 1916, and had it for their own use and not to sell and did not sell the same, they should find them not guilty.”

Instruction 4, asked for by the defendants, was as follows:

“The court instructs the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima facie evidence of guilt, still, if the evidence shows that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, then the prima fade evidence is overcome and the Commonwealth is then required to prove by clear, distinct and reliable evidence that the defendants had the same for the illegal purpose mentioned in the indictment and if the Commonwealth has not so proven, they should find the defendants not guilty.”.

If there was any error in refusing this instruction, it was harmless, as the court had already given, at the instance of the defendants, instruction 3 which sufficiently protected their rights. Instruction 3 was as follows:

“The court instructs the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima fade evidence of guilt, still if you believe from the evidence that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, you should find them not guilty.”

It is further insisted, however, on the part of the Commonwealth that instruction 4 was erroneous because it is. unlawful to keen, even in a home, more than one gallon of whiskey or etc. after November 1, 1916, no matter when or for what purpose scauired.

Section 3 of the act declares, amongst other things, that “After November first, nineteen hundred and sixteen, it shall be unlawful for any person in this State to manufacture, transport, sell, keep or store for sale, offer, advertise or expose for sale, give away or dispense or solicit in any way, or receive orders for or aid in procuring ardent spirits, except as hereinafter provided.” From this it was argued for the Commonwealth that it was unlawful for a person to “keep” in his home for his personal use an amount of distilled liquor in excess of one gallon. But we do not so construe the statute. The connection in which the word “keep” is used shows that it. was not intended to apply to such a case. The language is, “sell, keep or store for sale,' offer, advertise or expose for sale,” etc., showing that, the legislative purpose was to prohibit the keeping for the purpose of disposition to others, and not for private use. This is made more manifest when this section is read, as it must be, in connection with section 65, which declares that “the possession in his home of more than one gallon of distilled liquor * * * at any one time, shall * * * be prima facie evidence that such person possesses such distilled liquors * * * for the purpose of sale.” If the contention of the Commonwealth be correct, that a person cannot “keep” in his home for private use more than one gallon of distilled liquor, then section 3 would be in direct conflict with section 65, which declares that such possession is only prima facie evidence of a “purpose of sale.” It seems clear, therefore, that the act does not prohibit a possession in a home for private use, if the possession was lawfully acquired. Whether or not it is in the power of the legislature to prohibit such, a possession in a reasonable quantity when the public is not affected thereby, it is not necessary to decide. No such question is presented, and it is sufficient to say that the present act does not prohibit such possession when lawfully acquired, but simply declares what the presumption shall be. By the terms of the act the presumption is merely prima, fade and may be rebutted.

Affirmed.