94 Va. 787 | Va. | 1896
delivered the opinion of the court.
This is a writ of error to a judgment of the Hustings Court of the city of Bichmond.
The accused, upon the calling of the case for trial, moved the court to quash the indictment, and also demurred to it,
The indictment was for a violation of the provisions of Sec. 3804 of the Code. It contains but a single count, which charges “that Otto Morganstern (the plaintiff in error), on the 28th of July, in the year one thousand eight hundred and ninety-five, at the said city, and within the jurisdiction of the said Hustings Court of the city of Richmond, being then and there the keeper and proprietor of a bar-room, restaurant, saloon, and other place where intoxicating liquors are sold, between the hours of twelve o’clock Saturday night, July 27, 1895, and sunrise of the next succeeding Monday morning, July 29, 1895, unlawfully did permit his said bar-room, restaurant, saloon, and other place to be and remain open, and did, then and there, unlawfully sell and permit to be sold intoxicating bitters and other intoxicating liquors therein, against the peace and dignity of the Commonwealth of Virginia.”
The duplicity was alleged to consist in charging in the same count two separate and distinct offences, viz: 1. Opening the bar-room, and 2. Selling intoxicating liquors therein.
The objection made to the indictment is not tenable. The count follows the language of the statute, and charges that the opening of the bar-room and the sale of the liquors were done at the same time and place. Opening a bar-room or other place where intoxicating liquors are sold during the time it is prohibited by the statute is in itself a criminal offence, and so is the sale of intoxicating liquors. If they are separately done on different occasions, they constitute separate and distinct offences; but when they are charged, as in this indictment, in the language of the statute, and as being done at the same time and place, they constitute together only one offence, and there can be but one punishment.
Where the several acts specified in the statute are conjunctively charged in the same count of an indictment, the proof of any one of them is sufficient to authorize a conviction.
Where one or more of the acts are committed at a certain time, and other or the same acts are committed at a different time, the pleader may charge them in different counts, and if they are proved, the defendant may be convicted of the several offences so committed on different occasions and punished for each offence.
The motion of the defendant to quash the indictment and also his demurrer to the indictment having been overruled, he next tendered to the court a special plea, which was unnecessary, in order to avail himself of the defence he thereby intended to make, in which he recited the ordinance of the city requiring bar-rooms to be closed on Sunday, averred that he had been convicted under the ordinance by the Police Court of the city for the same offence for which he was indicted, and claimed the right to be discharged from prosecution under the indictment. '
The plea was intended to present the defence that the city has police regulations on the subject of the statute within the meaning of its proviso, and that the ordinance of the city inflicts a penalty equal to that inflicted by the statute, so that he was not liable to prosecution for the offence the statute creates. The ordinance is as follows: “Every hotel keeper and keeper of a restaurant, lager beer saloon, or other place where ardent spirits, beer, cider, or other drinks are sold or given away, shall close the bar where such drinks are sold or given away, every Sunday during the whole day. * * * Any person violating any provision of this section shall be fined not less than ten nor more than five hundred dollars.”
The plea presents substantially the same question that was raised and decided in Thon’s Case, 31 Gratt. 887. The ordinance of the city is precisely the same now as it was when passed upon in that case, as is also, the statute, with the exception that the latter has been since amended by the Legislature and its scope enlarged by prohibiting the opening of a bar-room, saloon, or other place for the sale of intoxicating liquors, as well as their sale, during a designated time of
The proviso of the statute was construed in that case to mean that the police regulations or ordinance of a city, in order to exempt the city from the operation of the statute, should “define the same offence and prescribe the same punishment substantially as had been done in the statute.”
The ordinance is less compreHensive than the statute, and even greater differences now exist between the ordinance and the statute than existed between them when Thorfs Case was decided. The ordinance requires the bar where intoxicating drinks are sold or given away to be closed only during the whole of Sunday, while the statute prohibits both the opening of a bar-room, saloon, or other place for the sale of intoxicating liquors and the sale of such liquors not only during the whole of Sunday but also until sunrise of the succeeding Monday morning. It would not be a violation of the ordinance to keep open a bar, saloon, or other place for the sale of intoxicating liquors, or to sell intoxicating drinks therein, between 12 o’clock of a Sunday night and sunrise of the succeeding Monday morning, while it would be a clear violation of the statute to do either during that time at any other place within the State than one governed by such ordinance. This would make one law for the city and another one for the county. “This,” as was said by Judge Moncure in Thon's Case, “would create a palpable difference and inequality in the law governing different localities of the same State, and could never have been contemplated or intended by the Legislature.”
It was also held in TJion’s Gase that the penalty prescribed by the ordinance was not equal to the penalty inflicted by the statute, for under the ordinance there could only be one pun
The demurrer to the plea was properly sustained by the court.
After the testimony was closed, the defendant moved the court to give certain instructions to the jury. This the court refused to do, and in lieu thereof gave one instruction of its own. To the action of the court in refusing his instructions and giving its own the defendant excepted, and this ruling of the court constitutes his third assignment of error.
The instructions asked for by the defendant are as follows:
1. “The court instructs the jury that if they believe from the evidence that the accused had his bar enclosed by a curtain nailed down to the floor and reaching nearly to the ceiling, and that said side entrance was the only way for his boarders to reach his restaurant without opening the front door, and that said door was kept open for the purpose of allowing his boarders to enter, and that there was no one there to give or sell or deal out the intoxicating bitters or liquors, then they must find the accused noL guilty, and if there is any reasonable doubt in their minds, about this, they must give the accused the benefit of this doubt.”
3. “The court instructs the jury that they cannot convict the accused unless they believe from the evidence beyond all reasonable doubt that he had his bar-room or saloon open, and sold or permitted to be sold intoxicating bitters or other intoxicating liquors therein between the hours of twelve o’clock Saturday night, July 27,1895, and sunrise of the next succeeding Monday morning, July 29, 1895.”
4. “The court instructs the jury that they cannot convict the accused in this case of the offence of keeping or permitting his bar-room or saloon to be kept open as charged in the indictment, unless they believe from the evidence beyond all reasonable doubt that he or his employee was within, ready to do business, and that there was no obstruction to persons entering. ’ ’
5. “The court instructs the jury that the simple fact of keeping the side door that leads to the bar-room and restaurant open is not sufficient to convict one of having his barroom or saloon open, and unless they believe from the evidence beyond all reasonable doubt that said door was kept open for the purpose of traffic in intoxicating bitters or liquors they must acquit the accused.”
The instruction given by the court in lieu of those asked for by the defendant was as follows:
“The court instructs the jury that in contemplation of law a bar-room is open when it is kept perfectly accessible to those who wish to enter it, and it is equally in contemplation of law open if the ordinary and usual entrance is closed and general access is permitted through a private entrance. Nor is it necessary in order to find the defendant guilty to prove that there w as some one within actending the bar, nor is it necessary to prove a drink was sold.”
This was an erroneous construction of the statute, and a misconception of the intention of the Legislature as manifested in its enactment. The original (Acts 1874, p. 76) of the present statute prohibited the sale of intoxicating drinks in any bar-room, restaurant, saloon, store, or other place from twelve o’clock on each and every Saturday night of the week until sunrise of the succeeding Monday morning. The Legislature subsequently amended and re-enacted the statute (Acts 1877-78, p. 304,) into its present form, and thereby declared that “no bar-room, saloon, or other place for the sale of intoxicating liquors shall he opened” during the time it had previously prohibited and still prohibits the sale of intoxicating liquors. It meant that during such time not only that there should be no sale Df intoxicating liquors, but that the place in which they were sold the rest of the week should be closed to view, and to all access, except perhaps to the casual entrance of the owner or his employee for some innocent and necessary purpose, so as to remove any temptation to buy or to sell, and all ground of offence to the moral and orderly sentiment to be found in every community which condemns particularly any traffic in liquor on Sunday. The mere enclosure of the bar counter, while free access is permitted to the room in which the liquors are dispensed, is not a compliance either with the letter or the spirit of the statute.
The second instruction announced that the jury could not convict the accused unless they believed from th® evidence that he sold or permitted to be sold intoxicating bitters or liquors as charged in the indictment. Keeping the bar-room open, equally with the sale therein of intoxicating liquors, is an offence under the statute. Both acts were charged in the indictment, and proof of either act was sufficient to authorize his conviction; but the instruction wholly ignored the offence of keeping the bar-room open. However clear and satisfactory the evidence might be that the defendant kept his barroom open, the court was asked to tell the jury that they must acquit him, unless they believed from the evidence, that
The third instruction required the jury to believe from the evidence, before they could convict the defendant, that he both kept his bar-room open and sold or permitted to be sold intoxicating liquors, therein, when, as already stated above, proof of either act was sufficient to justify his conviction. This instruction w as equally as objectionable as the second, and for the like reason.
The fourth and fifth instructions were virtually disposed of in discussing the first instruction. It was not necessary, in order to constitute the offence of opening his bar-room, that the defendant or his employee should be within and ready to do business, or that the side door which opened into the barroom and restaurant should be kept open for the purpose of traffic in intoxicating liquors.
The court did not err in refusing to give each and all ol the instructions asked for by the defendant.
Nor d’d the court err in the instruction which it gave in lieu of them. The instruction correctly expounded the law of the offence, which is defined in the statute and charged in the indictment. It was not liable to the objection that it announced abstract principles of law. It correctly construed the statute, and was directly applicable to the issue before the jury. Norfolk & W. R. Co. v. Ampey, 93 Va. 108
The only remaining assignment of error relates to the refusal of the court to set aside the verdict on the ground that it was contrary to the law and the evidence, and award the defendant a new trial. In this there was no error. The evidence showed that the defendant kept his bar and restaurant in the same room, and that notwithstanding the main entrance to the room by the front door was closed, there was full access to the room on the Sunday designated in the indictment by a side door that opened directly into it, and that persons
The judgment of the Hustings Court must be affirmed.
Affirmed.