123 Va. 810 | Va. | 1918
delivered the opinion of the court.
This case is brought here by Lee Carter, hereinafter designated as the defendant, who was indicted, tried and convicted for an alleged violation of the statute familiarly known as the Mapp prohibition law. The indictment contained two counts, the first charging him with unlawfully transporting more than one quart of ardent spirits, and the other charging him with unlawfully receiving such ardent spirits. The jury found him guilty only upon the first count, and the second may, therefore, be disregarded.
A demurrer to the indictment," which was overruled, raised certain constitutional questions which, subsequent to the granting of the writ of error herein, were settled adversely to the contention of he defendant. Pine & Scott v. Commonwealth, 121 Va. 812, 93 S. E. 652; Cochran v. Commonwealth, 122 Va. 801, 94 S. E. 329.
The defendant was arrested in the town hall at Norton; he was intoxicated, and had on his person two bottles, both of which contained whiskey. He made no statement at the time and did not testify or offer any evidence at the trial.
The assignment of error which is now chiefly relied upon (the demurrer to the indictment having been abandoned) arises upon the following instruction-given to the jury over the defendant’s objection:
“Gentlemen of the jury, under that law, after the 1st day of November, the only way you can receive liquor is by written order sent out of the State. By sending a written order out of the State somewhere, you can buy a quart every thirty days and receive it from the express company by making affidavit that you have not received any, in this case, from the 1st day of November. You may carry it from the express office to your home, or if you are a bona fide traveler, if you were going to Cincinnati, Louisville, or Washington city on business, not to buy liquor, but going on other business, and you had not received a quart of liquor within thirty days, you could get a quart and put it in your grip, not in your pocket, and bring it home with you; you have no right to receive a quart and put it in your pocket and carry it all over the country. You must believe beyond a reasonable doubt that he had this liquor where the law prohibits, and I have told you where he could have it and how he could get it. You are not allowed to have liquor except at your lióme. ' He can have it at his home, or he may get a quart every thirty days; or he can have a gallon or two gallons at his home, and that is prima facie, even at his home, that he is a liquor seller, but the party would have the right to come in and show that he was not a liquor seller, but having any quantity of liquor on his person outside of his home, except by a bona fide traveler is illegal, except a bona fide traveler, or carrying it from the express office home.”
It was further insisted that the instruction improperly and unlawfully distinguished between the right of a person to carry whiskey in his baggage and his right to carry it in his pocket. This distinction, however, is immaterial in the present case, because, as we have seen, the defendant had in his possession more than the law allowed, even if it be conceded that having it in his pockets was equivalent to having it in his baggage.
What may perhaps be regarded as the chief objection to the instruction is that it improperly assumed that the Commonwealth had proved that .the defendant was transporting the whiskey. We are unable to accept this view. The defendant did not live in the town hall, and his temporary presence there with the whiskey was sufficient evidence that he was carrying it about with him. If he wished to. rely upon any matter in defense the burden rested upon him. Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925.
The judgment was right and it must be affirmed.
Affirmed.