122 Va. 872 | Va. | 1918
delivered the opinion of the court.
The accused was convicted under the prohibition law (Acts 1916, page 215) of unlawfully transporting ardent spirits in the State of Virginia. The first count of the indictment charges him with bringing more than one quart of ardent spirits into the State from a point without to a point within this State for use within the State; the second count charges him with unlawfully bringing into the State from a point without the State to a point within this State more than one quart of ardent spirits within a period of thirty days; and the third count with unlawfully transporting ardent spirits from one point to another within this State.
Upon his arraignment, he demurred to the indictment and each count thereof, which demurrer was overruled by the court; and this is assigned as error. It is sufficient to say, as to this assignment, that under section 39 of the act above referred to, the'indictment is sufficient. Pine and Scott v. Commonwealth, 121 Va. 812, 93 S. E. 653; Commonwealth v. Hill, 5 Gratt. (46 Va.) 682, 687; Hendricks v. Commonwealth. 75 Va. 934, 943; Devine v. Commonwealth, 107
Before the accused was arraigned, he petitioned the court to restore to him the suit case and the ardent spirits contained therein, which were taken from him by the policemen upon his arrest; a motion to like effect was made at the trial before the jury were sworn; and again, while the Commonwealth was introducing its evidence in chief, he objected to introduction of the evidence that the suit case contained such ardent spirits.
The question raised has been frequently considered, and the overwhelming weight of authority sustains the admissibility of such evidence. In 35 Cyc. 1271-2, citing many authorities, this is said: “It is well settled that a person legally arrested and in the custody of the law on a criminal charge may be subject to a personal search and examination, even though against his will, for evidence as to his criminality, and, if found, it may be seized without violating his constitutional rights. And if any person, even by illegal seizure, procure possession of any article, instrument, or document, the State may, notwithstanding such illegal seizure, use it, if necessary, as legitimate evidence against the person from whom it was so obtained to convict him of a crime, or upon an investigation against such person before a grand jury, it being an established rule that the'court can take no notice of how such evidence was obtained, whether originating from a legal or ah illegal source.”
In 8 B. C. L. 196, this is said: “While it is true that the search of a defendant without legal justification is a trespass and an indictable misdemeanor, there is no principle or theory upon which the State may be deprived of the right
Counsel for the accused relies upon the case of Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 Sup. Ct. 341, L. R. A. 1915 B. 834, Ann. Cas. 1915 C, 1177, as authority for the contrary view. Even if it were, it would be opposed to the overwhelming weight of authority. So far, however, from sustaining the proposition contended for, the contrary doctrine is expressly recognized in this paragraph of the opinion: “What then is the present case? Before answering that inquiry specifically, it may be well, by a process of exclusion, to state what it is not. It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused, when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bish. on Cr. Proc., sec. 211; Wharton, Cr. Pl. & Pr. (8th ed.), sec. 60; Dillon v. O’Brien & Davis, 16 Cox, C. C. 245; Ir. L. R. 20 C. L. 300; 7 Am. Cr. Rep. 66. Nor is it the case of testimony offered at a trial where the court is asked to stop and
The case of Town of Blacksburg v. Beam, 104 S. C. 146, 88 S. E. 441, L. R. A. 1916-E, 714, is also relied on. It is sufficient to say as to this case, that the evidence there was obtained from the defendant’s private room by search made in his absence before the warrant for his arrest had been issued and without a search warrant, and therefore differs from the case at bar in which the suit case found in the possession of the prisoner was not opened until after the warrant charging him with the crime had been issued and the accused arrested.
The facts of this case are, that the accused was arrested at 2:05 A. M. on February 1, 1917, by two police officers of the city of Richmond, at Elba station. He had arrived upon an Atlantic Coast Line train from Washington, D. C., which was going south, and had in his hand a suit case. One of the policemen accused him of having whiskey therein. The accused replied that the suit case did not belong to him, and told the officers that he came from Washington and was on his way to North Carolina. Later he told the officers that he was going to his room at Twenty-fourth and Main streets, Richmond, to get his clothes, and would take an early morning train for the South. He also explained his stopping at Richmond by saying that he found out that that train would not take him to Townsville, N. C., where he desired to go, and that he would have to take a 6:85 A. M. Seaboard Air Line train from Richmond in order to get to'that place, and gave this as one of the reasons why he-left the train in Richmond. After having first said that
The evidence, then, is clearly sufficient, unless he was upon an interstate journey transporting the whiskey from Washington, D. C., to Townsville, N. C., to convict him of the violation of the statute forbidding the transportation of more than one quart of liquor in this State in personal baggage. Section 39, prohibition act.
Another contention is that the act is unconstitutional, in that the offense is not embraced within the title, which reads: “An act to define ardent spirits and to prohibit the manufacture, use, sale, offering for sale, transportation for sale, keeping for sale, and giving away of ardent spirits as herein defined, except as provided herein; to prohibit advertisement of such ardent spirits; to prescribe the jurisdiction for trial- and appeals of cases arising under this act; to prescribe the force and effect of certain evidence and prosecutions for violation of this act; to create the office of commissioner of prohibition and to define his duties and powers and compensation; defining intoxication and who is a person of intemperate habits within the meaning of this act; prescribing certain rules of evidence in certain prosecutions under this act; exempting certain counties and cities from certain provisions of this act and authorizing additional restrictions and limitations beyond the provisions of this act as to sale, manufacture or delivery of ardent spirits in certain counties and cities; to provide for the enforcement of this act and to prescribe penalties for
It is sufficient to say that this title clearly indicates the general purpose of the act to prohibit the manufacture, use, sale, transportation for sale and giving away of ardent spirits. The transportation for sale is by the act absolutely prohibited, while transportation for private use in limited quantities is expressly permitted. It is perfectly well settled in this State that although a statute refers to many things of a diverse nature, the title will be sufficient if the subordinate provisions of the statute may be fairly regarded as in furtherance of and as facilitating the accomplishment of the general object expressed in the title. The constitutional inhibition was not intended to hinder remedial legislation, nor to prevent the incorporation in a single act of the entire statutory law upon one general subject, as this act does. .There should be a liberal construction of the title so as to uphold the statute if practicable. All of its provisions against the transportation of liquor are congruous and germane to the title, and the methods devised for the accomplishment of its general purpose. So this court has decided in refusing to grant a writ of error in the case of W. H. Wiley v. Commonwealth, from the Corporation Court of the city of Lynchburg, and in Burton v. Commonwealth, ante 847, 94 S. E. 923, this day decided. Wilburn v. Raines, 111 Va. 339, 68 S. E. 993; Commonwealth v. Willcox, 111 Va. 849, 69 S. E. 1027; Dist. Road Board v. Spillman, 117 Va. 201, 84 S. E. 103; Commonwealth v. Chesapeake & Ohio R. Co., 118 Va. 267, 87 S. E. 622.
The suggestion that the act violates the fourteenth amendment of the Constitution of the United States, in so far as it discriminates between corporation carriers and individuals who are carriers is not supported by any authority,
The accused sought to introduce two letters, written in Henderson, N. C., from one Abert Macchi, in order to support his claim that he had secured employment in North Carolina and was on his way to accept it at the time he was arrested. The court properly refused to admit these letters in evidence, because they were in no way identified as genuine.
This brings us to the instructions.
An instruction was offered by the accused in these words: “The court instructs the jury that if they believe from the evidence that the accused transported ardent spirits from a point without this State to the city of Richmond, in Ms personal baggage; that the accused intended to make, and at the time of his arrest was making a continuous journey from a point without this State through this State to another point without this State; that the ardent spirits so transported or carried by him were not intended for use within this State, and not in fact sold or offered for sale, dispensed, given away or used in any manner prohibited by law in the city of Richmond, then the jury should find the accused not guilty.” This instruction was amended by the court by adding immediately after the words “city of Richmond,” in the latter part-of the instruction, the words, “or intended so to be,” and after the words “not guilty,” this language: “but when the ardent spirits in excess of one quart are found in the possession of the accused, the burden of proving the above statements as facts is thrown upon the accused.”
The accused asked the court to instruct the jury that if they believed that the ardent spirits were brought into the State by the accused for his own personal use, and not for manufacture or sale, they should find the prisoner not guilty. This instruction is based upon the assertion that the State lacks power to prohibit the transportation of ardent spirits into this State for personal use and not for manufacture or sale, and the question is argued with great force and vigor. It is sufficient to say as to this, that recent cases decided by the Supreme Court of the United States make it clear and fully determine that the State has plenary power to prohibit the importation of ardent
It is manifest that while the defense of the accused, if sustained by proper proof and credited by the jury, was a perfect defense' (for the transportation occurred before the recent prohibition by Congress of the interstate transportation of ardent spirits into States which prohibit its manufacture), still the jury had the right to discredit his testimony, and the issue having been fairly submitted to them, their verdict, under the statute, comes to us as upon a demurrer to the evidence, and the judgment must, therefore,. be affirmed.
Affirmed.