126 Va. 815 | Va. | 1920
after making the foregoing statement, delivered the following opinion of the court.
This question is ruled by the decison of this court in Pine & Scott v. Commonwealth, 121 Va. 812, 93 S. E. 652, and must be answered in the negative.
This count does not charge that the ardent spirits were transported in interstate commerce, and, for the reason assigned in the opinion of this court in Sickel v. Commonwealth, 124 Va. 821, 99 S. E. 678, for the holding therein, this count was good on demurrer. We are of opinion that this count is good on demurrer for other reasons also, which are indicated in discussing question 5 in the opinion below. Hence the question under consideration must be answered in the negative.
The question just stated must be answered in the negative.
The veracity of the witness had been directly impeached by the testimony for the Commonwealth in conflict with which this witness had testified with regard to the bottle episode, as set forth in the statement preceding this opinion. There was sufficient'evidence thus presented before the jury to submit the question to them of whether this witness “would swear to anything in this case.” The question addressed to the witness was, in effect, merely whether
The cases of Green v. Commonwealth, 122 Va. 862, 94 S. E. 940; Jessie’s Case, 112 Va. 887, 71 S. E. 612, and Mullen’s Case, 113 Va. 787, 75 S. E. 193, relied on for the accused upon the question under consideration are not at all similar in their facts to the one now before us. In those cases the Comonwealth’s attorney made statements or took positions in argument before the jury which there was no evidence whatever in the case to support. In the-
This question must be answered in the negative.
The instruction as given is certainly as favorable to the accused in its statement upon the subject dealt with as he could ask. We cannot here consider whether it was too favorable to the accused. The omitted language was objectionable because it needlessly elaborated the rule laid down, fully stated by the instruction as given,, by entering upon a statement of the reasons for such rule; which statement was likely to mislead the jury into concluding that the court thereby expressed an opinion that the testimony referred to was in fact “tainted” and was in fact “uncorroborated” in any particular; whereas, it was for the jury to decide whether the testimony in question was “tainted,” and there was evidence in the case corroborating the testimony in question in some particulars.
“ * * whosoever 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” (a fine of not more than $1,000.00 or imprisonment for not more than six months, or both); “Provided, that nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State: *’* .” U. S. Comp. St. 1918, XL S. Comp. Ann. St. Supp. 1919, § 8739a.
In the case of U. S. v. Dan Hill, decided January 13, 1919, 248 U. S. 420, 39 Sup. Ct. 143, 63 L. Ed. 337, relied on for the accused in the instant case, the indictment charged that Hill having upon his person one quart of intoxicating liquor intended for his personal use as a beverage, did in the State of Kentucky, get on board a certain trolley car being operated by a common carrier “engaged in interstate commerce and by means thereof did cause himself and the said intoxicating liquor, then upon his person, to be carried and transported in interstate commerce into the State of West Virginia,” in violation of the Reed-Jones amendment aforesaid. The indictment also charged that the intoxicating liquor was not ordered, purchased or caused to be transported for scientific, sacramental, medicinal or mechanical purposes. There was a demurrer to and a motion to quash the indictment, which motions were sustained by the trial court. That ruling was reversed by the Supreme Court on the appeal.
The law of West'Virginia in force at the time the Dan Hill Case arose permitted any person to bring into the State liquor in a quantity not in excess of one quart in
Inasmuch as the evidence on the trial of the instant case discloses that the accused caused the liquor to be transported by a common carrier engaged in interstate commerce, in that particular the case before us falls directly under the holding of the Dan Hill Case and we must hold that the accused did “cause intoxicating liquors to be transported in interstate commerce,” but it does not follow from that single circumstance that the Federal statute in question is applicable in the instant case.
It will be observed that the indictment in the Dan Hill Case not only charged that the liquor was transported in interstate commerce for the personal use of Hill “as a beverage,” but that it was not transported “for scientific, sacramental, medicinal or mechanical purposes.” The demurrer to the indictment admitted the truth of the latter as well as of the former charges.
In the instant case the following instructions, (not quoted in the statement preceding this opinion) was given to the jury:
(1) “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the accused brought from Washington to Norfok ardent spirits in excess of one quart they should find him guilty and fix his punishment at confinement in jail not less than one month nor more than six months, and by a fine not less*826 than $50.00 nor more than $500.00. It is not necessary for the State to show any intent to sell the same.”
It will be seen from a reading of this instruction that it withdrew from the jury all consideration of the question of the purpose or purposes for which the liquor was transported into the State. If it was transported into the State “for scientific, sacramental, medicinal or mechanical purposes” the Reed-Jones amendment, by its express terms, in the body of the act itself, had no application to the case. And not only is there no charge in the indictment in the instant case on that subject, but there is no evidence whatever in the case on such subject. So far as the evidence discloses the liquor in question in the instant case may have been transported into this State for the purposes mentioned and expressly permitted by the Federal statute. No issue or enquiry has been made in the case before us on the subject. If the indictment had contained the charges on such subject of the indictment in the Dan Hill Case, the accused might have been able to introduce evidence on the trial which might have shown that the liquor was transported for some one of the purposes permitted by the Federal statute. Such transportation would not have been an offense under the Federal statute, but, the liquor being in excess of one quart, the transportation was an offense under the Virginia statute.
Hence, we cannot say from the evidence on the trial, and the conviction of the accused of an offense against the State statute, any more than we can on the demurrer to the indictment charging only" an offense against the State statute, that the action of which the accused was guilty constituted an offense under the Federal statute aforesaid. So far as appears from the record before us the Reed-Jones amendment is not applicáble to the case before us.
The first branch, (a), of the question under considera
The case will be affirmed.
Affirmed.