Carleson v. Commonwealth

150 Va. 602 | Va. | 1928

Prentis, P.,

delivered the opinion of the court.

The plaintiff in error is here complaining of his conviction of a misdemeanor.

He assigns two errors. The first of these is that he was tried by a jury of five for a misdemeanor, and that the court refused to empanel a jury of twelve, his claim being that he was indicted and should have been tried for a felony.

The indictment charged him with unlawfully selling ardent spirits, and with unlawfully keeping,, storing and exposing ardent spirits for sale, and with unlawfully manufacturing, selling, offering, keeping, storing and exposing for sale, giving away, transporting, dispensing, soliciting, advertising and receiving-orders for ardent spirits. That, this is an indictment for several misdemeanors is no longer questioned here,, and for this it is only necessary to cite the case of' Morris v. Commonwealth, 145 Va. 880, 134 S. E. 567. If he had been charged with manufacturing “distilled ardent spirits,” this would have been a charge of' felony. The trial court properly held that while the-indictment charged several nlisdemeanors, it did not charge a felony.

The second assignment of error is based upon the refusal of the court to set aside the verdict and grant the accused a new trial for insufficiency of the evidence-to support the conviction.

This assignment cannot be considered because the bills of exceptions were not signed within sixty days from the time at which the judgment was entered, as required by Code, section 6252. The facts are, that when first presented there had been no notice in writing to opposing counsel of the intention to apply to the judge to sign these bills, and so they could not be legally signed. Scholz v. Standard Accident Ins. Co., 145 Va. 699, 134 S. E. 728. When this defect had been cured and the bills were again presented, the time had expired. This is jurisdictional, as we have frequently held, and no further discussion is either appropriate or necessary. Bragg v. Justis, 129 Va. 354, 106 S. E. 335; Kelly v. Trehy, 133 Va. 160, 112 S. E. 757; Rae v. Commonwealth, 135 Va. 714, 115 S. E. 381; James v. Commonwealth, 133 Va. 723, 112 S. E. 761; Thrift v. Commonwealth, 133 Va. 800, 112 S. E. 770; Pembroke Limestone Works v. Commonwealth, 139 Va. 270, 123 S. E. 334.

The trial judge, however, did sign the bill of exceptions and certify the evidence. An inspection thereof shows that the result would have been the same if we were allowed to consider it. There is a hopeless conflict in the testimony, but that offered for the Commonwealth, which the jury credited, is quite sufficient to support the conviction.

Affirmed.