Sickel v. Commonwealth

97 S.E. 783, 124 Va. 821, 1919 Va. LEXIS 169

• Court: Supreme Court of Virginia
• Decided: January 16, 1919
• Status: Published

Opinions

Burks, j.,

delivered the opinion of the court.

[1] The plaintiff in error, hereinafter designated as the defendant, was indicted, tried and convicted for a violation of the prohibition law (Acts 1916, p. 215). The indictment contained three counts. The first count charges that the defendant “did unlawfully bring into the State of Vir.ginia, and into the said city of Richmond, from a point without the State of Virginia, ardent spirits for use in the State of Virginia.” The second count charges that the defendant “did unlawfully bring into the State of Virginia, and into the said city of Richmond, from a point without the State of Virginia, within a period of thirty days, more than one quart of ardent spirits;” and the third count charges that the defendant, at the said city, “did unlawfully transport ardent spirits from one point to another in the State of Virginia.” The defendant pleaded to the jurisdiction of the court as to the offenses charged in counts 1 and 2, the attorney for the Commonwealth demurred to the plea, and the trial court sustained the demurrer. The defendant then demurred to the indictment and to each count thereof, the attorney for the Commonwealth joined in the demurrer, and the court overruled it. He then asked for a bill of particulars, and the attorney for the Commonwealth stated in writing that the several counts of the indictment constituted as good a bill of particulars as he could furnish. The defendant objected to the sufficiency of the bill, but the court overruled his objection, and the defendant excepted. He then pleaded not guilty and the trial proceeded, and the jury found him guilty and fixed his punishment at a fine of fifty dollars and imprisonment in jail for one month. He then moved in arrest of judgment, but his motion was overruled and judgment entered on the verdict. To the foregoing proceedings and rulings this writ of error was awarded.

The indictment is in all respects substantially the same as that held to be sufficient in Lucchesi v. Commonwealth. 122 Va. 872, 94 S. E. 925. There was no error, therefore, in overruling* the demurrer to the indictment.

[2] Neither was there any error in refusing to compel the attorney for the Commonwealth to furnish a better bill of particulars. Each count of the indictment gave the date when the offense was alleged to have been committed, and the city of Richmond as the point to which the ardent spirits were transported, and that was all the information needed to enable the defendant to concert his defense. The offense charged was not one likely to be committed in public, gnd the place from which the spirits were transported was probably unknown to the grand jury. To require its allegation and proof would be of no assistance to the defendant, and would, in many cases, defeat the object of the statute. The indictment sufficiently informed the defendant of “the cause and nature of his accusation.”

[3, 4] The plea to the jurisdiction was in the following words and figures, to-wit:

“This defendant in his own proper person comes and says that the court is without jurisdiction to try the charges contained in the first and second counts of the indictment herein, for this, to-wit: that the Congress of the United States of America, by an act approved March 3, 1917 [39 Stat. 1069, c. 162], and known as the Reed-Jones amendment, passed a law regulating the transportation of intoxicating liquors in interstate commerce, as follows: section 5 of act of Congress, approved March 3, 1917 (effective July 1, 1917) :

“ * * Whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal and mechanical purposes, into any State or Territory, the laws of which State or Territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished as aforesaid; provided, that nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State; provided further, that the postmaster-general is hereby authorized and directed to make public from time to time in suitable bulletins or public notices the names of the States in which it is unlawful to advertise or solicit orders for such liquors.’ [U. S. Comp. St. 1918, secs. 8739a, 10387a-10387c.] And this he is ready to verify. Therefore, he prays judgment whether any further proceedings be had under the first and second counts of the indictment in this tribunal.”

This plea presented no defense, and the demurrer thereto was properly sustained. Very able arguments were made before us as to the effect of the “Reed-Jones amendment,” referred to in the plea; counsel for the defendant insisting that the amendment took away from the States power to punish for bringing intoxicating liquors into the State from another State, and the Attorney General taking the opposite view. In the view we take of the ease, that question is not involved. Each of these counts charges that the defendant did unlawfully bring ardent spirits into the State from a point without the State. It did not charge that the defendant did “order, purchase or cause intoxicating liquors to be transported in interstate commerce,” nor did the plea contain any averment of fact that would bring the charge within the terms of the act of Congress. To hold such a plea good would require us to decide that intoxicating liquor could not by any means get into the State except by interstate commerce, and that a charge that the defendant unlawfully brought ardent spirits into the State was the equivalent of charging that he did unlawfully order, purchase or cause intoxicating liquors to be transported in interstate commerce into the State, and this we are not prepared to do. What'the defendant was charged with doing and what the State punishes, is the unlawful bringing of ardent spirits into the State in any manner whatever, except as provided by the statute. None of the offenses charged in the indictment is the same as any of those created by and for which a punishment is imposed by the act of Congress aforesaid. The State punishes the bringing of ardent spirits into the State, although it is private property brought in by an individual citizen for his personal use. There, is no allegation in the plea that takes the case out of the State statute, or brings it within the act of Congress, even if the latter superseded the former as to the offenses which are created by the act of Congress. The evidence is not certified, and we have no means of knowing how the ardent spirits were brought in, nor is that at all material to our present inquiry, which relates only to the sufficiency of the charge. If the defendant was in fact engaged in interstate commerce in bringing the ardent spirits into the State, and he wished to raise the question of the right of the State to punish him for bringing it in in, that capacity, it was a matter of defense which he should have set out in his plea.

The defendant sought to raise the same question, and no other, by his motion in arrest of judgment. The motion was properly overruled for the reasons just stated.

There is no error in the judgment of the hustings court, and it will accordingly be affirmed.

Affirmed.