Lillienfeld v. Commonwealth

92 Va. 818 | Va. | 1896

Riely, J.,

delivered the opinion of the court.

As preliminary to the hearing of this case, the question was raised at the bar as to the right of the court to 'transfer the case, which was pending at the place of session of the coui't at Staunton, to its place of session at Richmond, to be there heard and determined. Section 3093 of the Code provides that, “ by consent of the parties, or their counsel, or for reasons appearing to the court, any case pending in said court at one place of session may be transferred to another place of session, there to be heard and determined, or, if already heard, there to be determined, as if it had been originally docketed there.” The plain interpretation of the statute gives the court the right, when it is sitting at one of its places of session, to transfer to such place of session, as was done in this instance, any case pending at one of its other places of session. This was the construction put upon the statute hy this court, after argument and mature consideration, when, during its session at Wytheville, it transferred from Richmond to that place, and thence to Staunton, to be heard and determined, the case of Gibert v. W. C., V. M. & G. S. R. Co., reported in 33 Gratt. 586, as appears from its order entered of record on the 4th day of August, 1880, at its place of session at Wytheville. And the like action was taken on November 6th,'1891, when, during its session at Richmond, it transferred there the case of the Virginia, Tennessee, and Carolina Steel and Iron Company v. Jonas Wilder et als., which was pending in the court at its place of session at Wytheville.

The proceeding to revoke the license of the plaintiff in error to sell liquor was taken by the court, of its own motion, under section 560 of the Code, which is as follows:

“ Upon the motion of the attorney for the Commonwealth for the county or city, or of any other person, after ten days’ notice to any person or firm licensed to sell liquors or any other thing, the granting of whose license was based upon the certificate of a court, the court which . granted the certificate may revoke the license.”

And the order of the court initiating the proceeding was in the following words:

“ It is ordered by the court that a notice be issued against F. J. Lillienfeld to show cause, if any he can, why the barroom and retail liquor license under which he is doing business should not be revoked for selling,'and causing to be sold, to minors, whiskey, wine, and beer.”

Upon the hearing of the matter, Lillienfeld, by his counsel, moved tlie court to quash the notice, upon the ground that it was not sufficiently specific; which motion the court overruled ; and this constitutes the first assignment of error.

The order of the court, which was duly served upon the defendant, set forth plainly the ground of the proceeding, the sale of liquor to minors. It apprised him of the charge against his conduct of the business under his license. The statute does not provide, in terms, that the grounds, upon which the revocation of the license is, or will be, asked, shall be set forth in the notice or otherwise. It is sufficient to state the charge, or charges, in general terms, if stated with sufficient certainty to enable the person or firm, whose license it is sought to revoke, to understand the ground upon which the revocation will be asked. This was done in this case. The proceeding is a summary one ; and, as was said by Judge Lewis, in Cherry v. Commonwealth, 78 Va. 375, 378, “ it was manifestly not the intention of the Legislature to require in such proceedings the application of the strict and technical rules which apply to indictments and other forms of accusation in criminal prosecutions.” There is no substantial difference between the notice given in this case and the notice given in the , case of Cherry v. Commonwealth, supra, or in the case of Davis v. Commonwealth, 75 Va. 944, in both of which cases the notice was held to be sufficient.

It is also alleged as error that the court admitted as evidence, over the objection of the defendant, nineteen indictments which had been found against him by its grand jury for selling liquor to minors, and were then pending in the court for trial; and also in receiving the testimony of Charles Wilkins, that he had purchased intoxicating liquors of the defendant at his bar-room within the preceding twelve months, but prior to May 1, 1895, when his license took effect.

In this there was no error. In a proceeding of this kind the whole matter is heard and determined by the court, and it is not confined to the strict rules of evidence which obtain upon the trial of an issue before a jury, but the doors of evidence are, and should be, thrown open, that the court may be satisfied whether or not it has entrusted the sale of liquor to an unfit person, and the privilege of the license been abused, or the law violated. The relevancy and materiality of the evidence, and the weight to be given to it, are matters for the consideration of the court when i-t comes to determine the case. Even in certain criminal prosecutions, involving the life or liberty of the accused, whenever the intent or guilty knowledge is a material ingredient in the issue of the case, evidence of other acts of the accused of a similar nature, tending to establish such intent or knowledge, are admissible as evidence, if not too far removed ; and what are the limits as to the time and circumstances is for the court, in its discretion, to determine. Trogden’s Case, 31 Gratt. 863,

Upon a review of the whole evidence, as certified by the court, we are of opinion that the discretion of the court was properly exercised in revoking the license of the plaintiff in error. When the license was granted, he, along with the other applicants for liquor license, was notified and warned by the court that, if he sold or allowed liquor to be unlawfully sold to minors, his license would be revoked. The evidence discloses that liquor was sold to minors in his bar-room in a number of instances, and, if he did not himself sell it, he did not exercise due oversight and vigilance to see that it was not done by his bar-tender. It further appears that even after the large batch of indictments for selling liquor to minors had been found against him, he still retained as his bar-tender the man who is proved to have freely and without inquiry sold liquor to minors. The protection of minors against the terrible evils which ensue from contracting in early life the habit of indulgence in strong drink, and the happiness of parents, as well as the good of society in general, require that this dangerous traffic in ardent spirits should be carefully guarded, and not placed or suffered to remain in the hands of men who will disregard the law, or allow it to. be disregarded by their employees, or knowingly retain in 'their service, as bar-tenders, persons who violate the law.

Under a consideration of the whole case, the court is of opinion that the Corporation Court did not err in revoking the license of the plaintiff in error, and that its judgment should be affirmed.

Affirmed.