121 Va. 812 | Va. Ct. App. | 1917
Lead Opinion
délivered the opinion of the court.
“Sec. 7. While any good and sufficient indictment may be used, an indictment for any first offense under sections three, four and five, of this act, shall be sufficient if substantially in the form or to the effect following:
“ ‘State of Virginia,
“ ‘County of............to-wit :
“‘In the circuit court of..............county:
“ ‘The grand jurors in and for the body of said county of............and now attending said court at its .... . .term, nineteen......, upon their oaths, do present that ......within one year next prior to the finding of this indictment, in the said county of ......, did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, dispense, solicit, advertise and receive orders for ardent spirits, against the peace and dignity of the Commonwealth of Virginia.’ ”
The indictment contains but one count, and that is in the language of the statute. The defendant demurred to the indictment, but their demurrer was overruled, and this action of the court is assigned as error. The demurrer raised the question of the constitutionality of the act. One of the grounds of unconstitutionality is that it violates section 62 of the Constitution, hereinafter quoted. There is nothing in the record to indicate that this objection was made in the trial court. It was not made in the petition for the writ of error, nor referred to in the brief for the Commonwealth, but was made for the first time in the reply brief for plaintiffs in error. This, however, is immaterial. Every indictment is based upon the existence of a valid law annexing a penalty to the offense charged. If
The constitutionality of the act is challenged on the ground that the whole legislative power over intoxicating liquors is declared by section 62 of the Constitution, and that under the rule, expressio unius est exclusHo alterius, the granting of certain powers is the exclusion of all others. What powers the legislature has exercised which have not been granted have not been pointed out. The clause of the Constitution referred to is as follows:
“The General Assembly shall have full power to enact local option or dispensary laws, or any other laws, controlling, regulating, or prohibiting the manufacture or sale of intoxicating liquors.”
The maxim, expressio unius e<st exclusio alterius, though often of importancé and value, is not of universal application, even in the interpretation of State Constitutions. They are the fundamental, permanent law of the land, providing for the future as well as the present, and should carry out the principles of government as gathered from the instrument. when read as a whole. The application of arbitrary rules of construction will be resorted to with hesitation, especially when it would bring about results contrary to the declared public policy of the State, and hamper the legislature in amply providing for the health, morals, safety and welfare of the people. Only those things expressed in such positive affirmative terms as plainly imply the nega
In determining whether an act of the legislature is forbidden by the State Constitution, it must be borne in mind that the Constitution is not a grant of power, but a restriction upon an otherwise practically unlimited power; that the Constitution is to be looked to, not to ascertain whether’ a power has been conferred, but whether it has been taken away; that the legislature is practically omnipotent in the matter of legislation, except in so far as it is restrained by the Constitution, expressly or by plain, or (as some of the cases express it) by necessary, implications; that the mere enactment of a law is a legislative declaration of the necessary constitutional power, which is entitled to great respect from a co-ordinate department of the government; that every act is presumed to be constitutional until the contrary is made plainly to appear, and that all doubts on the subject are to be solved in favor of its validity. These principles and these presumptions are not of mere local application, but are common to practically all of the States. Authority is so abundant as to be easily found, and it would unnecessarily burden this opinion to do more than cite a few of the late cases by way of illustration. Button v. State Corporation Commission, 105 Va. 634, 54 S. E. 769; Henry's Case, 110 Va. 879, 65 S. E. 570, 26 L. R. A. (N. S.) 883; McGrew v. Mo. Pac. R. Co., 230 Mo. 496, 132
On no subject have the legislatures been given a freer hand than in dealing with intoxicating liquors. It has been so far regarded as an enemy of mankind that the most drastic legislation to suppress its use by the public has been upheld by the courts. We cite a few cases simply as illustrations : Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; James Clark Distilling Co. v. Western Mo. R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917 B, 1218; Express Co. v. Whittle, 194 Ala. 406, 69 So. 652, L. R. A. 1916 C, 278; Delaney v. Plunkett (Ga.) 91 S. E. 561; State v. Phillips, 109 Miss. 22, 67 So. 651, L. R. A. 1915 B, 530; Glenn v. Southern Express Co., 170 N. C. 286, 87 S. E. 136. For collection of cases, see 17 Am. & Eng. Ency. Law (2d ed.) 207, et seq.
In this State, from the earliest date to the adoption of the present Constitution, the legislature has exercised uncontrolled power over the manufacture and sale of intoxicating liquors, and since local option and dispensary laws have come into vogue, has exercised undisputed authority and control over these subjects also. In view of these facts, it would require very plain language to convince us that it was the purpose of the constitutional convention to take away from the legislature of this State a power exercised by the legislatures of the other States of the Union,
The constitutional provisions' relating to the legislative department have been classified as mandatory and prohibitive. The oaths of the. legislators bind them to the performance of the one, and the courts restrain them from the performance of the other, if they should overstep the limits set. As to all other powers they are free to act as their judgments dictate.
“In the partition of power between the three departments of government, the power of making laws is conferred on the General Assembly; some laws they are compelled by mandate to make; other laws they are forbidden to make; these are the only limits to their powers; all subjects of legislation not affected by mandate, nor by prohibition, are within the discretion of the General Assembly.” Commonwealth v. Drewry, 15 Gratt. (56 Va.) 1, 5..
As the legislature has all legislative power not taken away by the Constitution, it would seem that the classification into mandatory and prohibitive provisions was in the main correct. Constitutions, however, sometimes contain other provisions relating to or affecting the legislative department, which may be classified as either permissive or declaratory. This is especially true of modern Constitutions which enter into greater detail and more nearly approximate legislation than formerly. Indeed, some of their provisions are purely legislative in character. When the Constitution has fully dealt with a subject and covered, the entire ground, the legislature would be powerless to make any change in it, unless specially authorized to do so, and it may be desirable to confer such authority. In such case the authority is conferred by a permissive grant in the Constitution. McGurdy v. Smith, 107 Va. 757, 60 S. E. 78; Constitution 1902, secs. 89, 95, 100, 101. In other cases the constitutional provision is only declaratory of the
The presumption is that the same meaning attaches to a given word or phrase which is repeated in a Constitution, unless the contrary is made to appear, and hence the whole instrument should be examined to ascertain what that meaning is. Green v. Weller, 32 Miss. 650. There are but four sections of the Constitution containing the phrase “The General Assembly shall have power.”' These are sections 100, 101, 62 and 84. The first two plainly belong to the class of permissive provisions, and were necessary to enable the legislature to act on the subject at all. The convention had dealt fully with the whole subject of courts, and marked out a complete system, and if this was to be changed in any way, it was necessary for the Constitution to provide that, “The General Assembly shall have power” to make the change. Hence, the provisions permitting the legislature to establish courts of land registration, and to confer certain jurisdiction upon clerks of circuit courts. Section 86, however, is purely declaratory of the existing
The only remaining section containing the phrase, “The General Assembly shall have power” is section 62. It differs slightly, but significantly, from the phrase contained in the other sections. In order to avoid the idea of a limitation to any extent whatever on the legislative power, it declares that the General Assembly shall have full power. No new power whatever is conferred upon the legislature.
This view of the nature of section 62 of the Constitution is confirmed by the debtes thereon in the convention. During the discussion of a motion to strike the section out, Mr. B. Walton Moore said: “This morning I inquired of some
The court is of opinion that the purpose of the act is a wise one, but even if it were of a different opinion, it could make no difference in the result so long as it is within the legislative power, for judicial opinions of expediency cannot be substituted for the will of the legislature when constitutionally expressed. As said in Purity Extract Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184: “It is also well established that, when a State exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623; Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323; Ah Sin v. Wittman, 198 U. S. 500, 504, 25 Sup. Ct. 756, 49 L. Ed. 1142; New York, ex rel. Silz
We are of opinion that the provisions of the act of Assembly approved March 10, 1916 (Acts 1916, page 215), commonly known as the prohibition act, so far as called In question in this case, are not forbidden by section 62 of the Constitution of this State.
Counsel for plaintiffs in error cited State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, as authority for the position that the prohibition statute in this State is unconstitutional. In that case the Constitution of West Virginia declared that, “Laws may be passed regulating or prohibiting the sale of intoxicating liquor within this State.” Const., Art. 6, sec. 46. The legislature of West Virginia enacted a statute making it a penal offense to “solicit or receive orders for, or keep in his possession for another” (Code 1887, chap. 32, sec. 1, as amended by Laws 1887, chap. 29), intoxicating liquors. The court held that the act was in conflict with both the federal and State Constitutions, and was therefore void. The decision was made in 1889, and is not in consonance with the authorities hereinbefore cited, most of which are of much more recent date. For this reason we are unable to follow it.
Another objection to the indictment is that it contains, but one count, and yet it charges many offenses, and that it does not inform the defendant of “the cause and nature of his accusation.”
We have no disposition to detract from anything said in the cases cited, but they must be read in the light of the conditions existing when they were rendered. At that time there was no statute on the subject, and they announce the principle existing in the absence of statutory regulation. The act under consideration in effect declares that more than one offense arising under the statute may be charged in a single count. The power of the legislature to change rules of procedure is unquestionable, except as restrained hy the Constitution, and we can see no good reason why it may not provide that what has heretofore required several
It is claimed by the plaintiffs in error that the constitutional provision, “that in all criminal prosecutions a man hath the right to demand the cause and nature of his accusation” (Const. 1902, sec. 8), has been ignored. It is a fundamental proposition that in all cases, civil as well as criminal, a person haled into court has the right to demand that he be told in plain, intelligible language what is the cause of the complaint against him; and this right, in so far as it relates to crimes, is guaranteed by both the federal and State Constitutions; the federal Constitution, applicable to prosecutions by the. United States, declaring that, “In all criminal prosecutions, the accused shall enjoy the right to * * * be informed of the nature and cause of the accusation” (amendment VI), and the State Constitution, “That in all criminal prosecutions a man hath the right to demand the cause and nature of his accusation.” (Va. Const., sec. 8.) It will be observed that the language of the two Constitutions is substantially the same. We have no case in Virginia defining what is meant by “cause and nature of the accusation,” but it is very clearly set forth by Chief Justice Waite in United States v. Cruikshank, 92 U. S. 543, 23 L. Ed. 588. Paragraph 12 of the syllabus in that case, taken almost literally from the opinion, is as follows:
“In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’*832 The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged; and every ingredient of which the offence is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading, that, where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the of-fence in the same generic terms as in the definition, but it must state the species — it must descend to particulars. The object of the indictment is — first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.”
After thus stating the law, the Chief Justice gives a number of instances of allegations deemed too vague and uncertain, and says: “The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea; and the court that it may determine whether the facts will sustain the indictment.”
To the same effect is Head’s Case, 11 Gratt. (52 Va.) 819, and Arrington’s Case, 87 Va. 96, 12 S. E. 224, 10 L. E. A. 242, holding that the indictment must always allege the offense with such fullness and precision that the defendant may know for what he is prosecuted, and thereby be enabled to prepare his defense, and that the conviction
Referring to the provision of the Bill of Rights of that State, similar to the Bill of Rights in. this State, declaring that a man has the right to demand the cause and nature of his accusation, he said: “The right to make such a demand is just as great, just as mandatory, as any other of the kindred rights grouped together in the same section of the Constitution. So that the simple question is here presented, does an indictment which follows the statutory form prescribed, and uses the precise language set forth in the section quoted, meet with the requirements of the Constitution? * * * But the ‘nature and cause' of an accusation are not stated where there is no mention of the full act, or series of acts, for which the punishment is to be inflicted.”
In 1 Arch. Crim. Pl. & Pr. 88, it is said: “The principal rule as to the certainty required in the indictment may, I think, be correctly laid down thus: That where the definition of an offense, whether by a rule of common law or by a statute, includes generic terms (as it necessarily must), it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but it must state the species, it must descend to particulars.” To
Tested by the doctrine of these cases, the indictment under consideration, standing alone and unaided by the particulars of the offense, is, in some of its aspects, plainly insufficient. For instance, by section 3 of the act it is made an offense to “transport” for sale ardent spirits, and yet the indictment, under section 7, nowhere mentions “transport” as one of the offenses of which evidence may be offered. Section 3 makes it an offense to “advertise” for sale, or to “aid in procuring ardent spirits” without stating the facts constituting the offense; and by section 4 it is made an offense to act as “agent” or “employee” in certain instances, without stating the facts showing such agency or employment; but these various offenses may be committed in different ways. In fact, there may be serious conflict as to whether a given act amounts to advertising, or amounts to aiding, or to acting as agent or employee, in all of these cases. We have but to look to section 19 of the act on the subject of advertising to show the various kinds of acts which may be done and which are punishable as violations of the act, and yet the indictment gives the defendants no notice of them. Ordinarily, the acts done should be charged, in order to give the defendant the necessary information. It is the function of an indictment to charge facts and not legal conclusions. Bishop’s Case, 13 Gratt. (54 Va.) 785. The indictment undertakes to charge the defendant with all of the first offenses under sections 3, 4 and 5 of the act, but does not fully inform the defendant “with clearness and certainty” of the “cause and nature of his accusation.”
While the Constitution guarantees to every man the right to demand “the cause and nature of his accusation,”
We have no case in this State involving the right to demand a bill of particulars of either the Commonwealth or the defendant in a criminal case, but the practice is a common one in a great majority of the States, and also in the federal courts. 22 Cyc. 371-2, and cases cited. In Mathis v. State, 45 Fla. 46, 34 So. 287, a very comprehensive review of the authorities is given, but it is not deemed necessary to refer to or discuss them further than to say that, in a number of the cases referred to, it is said that the granting of a bill of particulars lies in the discretion of the trial court whose ruling on the subject is not subject to review. In many cases this is probably true, but it is not true where the charge in the indictment is too general and indefinite to appraise the defendant of the cause and nature of his accusation, without the aid of some sort of specification, or a bill of particulars. Wherever this is the case it is reversible error for the trial court to refuse to require such particulars to be furnished.
Except in the single case of an indictment under the prohibition law, the law of this State is that there cannot be more offenses than there are counts in the indictment, and, if the Commonwealth offers evidence of more than one, the proper practice is for the defendant to ask the court to compel the Commonwealth to elect to which one it will
The right to call for, and the duty to furnish, a bill of particulars in civil cases is of frequent application, and is regulated by section 3249 of the Code. The statute confers the right “in any action or motion,” and declares how it may be enforced. We do not think that this statute was intended to apply to a criminal prosecution, but the right is inherent in the trial court in the orderly administration of justice, to prevent wrong and injustice to. persons who are presumed to be innocent, and to assure to them their constitutional rights. State v. Lewis, 69 W. Va. 472, 72 S. E. 475, Ann. Cas. 1913 A, 1203. It is not to be presumed that less particularity is required in a criminal prosecution than in a civil action. The object of the bill is to state with greater • particularity than is done in the indictment “the cause and nature of his accusation.” The indictment, of course, must charge the offense, and if it fails to give the information necessary to enable the defendant to concert his defense, such information may be supplied by a bill of particulars; but if the offense is not charged in the indictment, the defect cannot be supplied by a bill of particulars. A bill of particulars may supply the fault of generality or uncertainty, but not the omission of an essential averment of the indictment. Such being the function of the bill of particulars, it is readily observed that by giving an absolute right to demand it, the indictment may be greatly simplified, as is done in the present instance, and at the same time no injury or injustice be done to the accused.
The language of the indictment is comprehensive enough to embrace the offenses intended to be charged, but as to some of these is not specific enough to give to the defendants the information to which they are entitled. Prior to the statute, every misdemeanor enumerated in the statute
The subject of election has been discussed in a number of cases before this court, some of them misdemeanors and some felonies. Dowdy’s Case, 9 Gratt. (50 Va.) 727, 60 Am. Dec. 314; Lazier’s Case, 10 Gratt. (51 Va.) 708; Anthony’s Case, 88 Va. 847, 14 S. E. 834; Lewis’ Case, 90 Va. 843, 20 S. E. 777; Benton’s Case, 91 Va. 782, 21 S. E. 495; Mitchell’s Case, 93 Va. 775, 20 S. E. 892; Johnson’s Case, 102 Va. 927, 46 S. E. 789; Fletcher’s Case, 106 Va. 840, 56 S. E. 149; Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677; Disc’s Case, 110 Va. 907, 67 S. E. 344. It is unnecessary to examine these cases in detail. Many of them are cases which involved but a single offense, charged in different ways; some of them involved more than one offense ; but in none of them has it been held that if more than one offense has been charged in the indictment, the prisoner will be compelled to go to trial on all, where it is made to appear that they are so separated by time and circumstance that it would confuse and disconcert him in preparation for the trial, or the jury in consideration of the case.
There is no reason on principle, however, why even two felonies of the same nature and punishable in the same manner may not be charged in different counts of the same indictment. Thus, where two men are killed in a single fight and the witnesses are the same, so that hé could not well introduce the testimony as to one without that as to the other, the prisoner could not be confused, and there Is no reason why the two offenses may not be united In the same indictment and tried at the same time. Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208.
In Hatcher & Shaw's Case, 106 Va. 827, 55 S. E. 677, there was but a single count in the indictment, charging the defendants with selling liquor without license to four persons, who were named, and others, “on the-day of March, in the year 1906, and at divers other times within the twelve months last past," and under that count evidence had been admitted tending to show a number of distinct sales running over a period of several months. At the conclusion of the Commonwealth’s evidence, the defendant
“This being so, it would seem clear upon principle that the defendants had the right to have the Commonwealth make an election. Because of the difficulty the Commonwealth has in prosecuting offenses of this kind, or for some other reason, there has been in this class of cases some relaxation of the strict rules as to pleading and the introduction of evidence which generally prevail in criminal cases. When under these relaxed rules the Commonwealth has been allowed to allege, and to offer evidence to prove, more than one offense, there does not seem to be any reason why, at the conclusion of the Commonwealth’s evidence and before the defendant offers his evidence, it should not be required to elect upon which sale it seeks a conviction. By requiring such an election the prisoner knows what charge it is necessary for him to meet in making his defense. This in common fairness he has a right to know. Such a course also saves time and expense by rendering it unnesessary for the defendant to offer evidence to disprove any other charge. It brings the mind of the jury to the consideration of a single sale. Another reason why the Commonwealth should be required to elect where evidence has been introduced as to a number of offenses, and there can only be a conviction as to one sale, is that some of the jurors may believe that the evidence of a particular sale is sufficient to convict, while others may think the evidence of that sale is not suf
“It may be that juries are not likely to be so careless as to bring in a verdict without an agreement of the part of all as to a particular sale, but it is a danger which can be avoided by requiring an election.”
This case has been cited, with approval, a number of times. In Dix’s Case, 110 Va. 907, 67 S. E. 844, referring to the subject of election, the statement of Mr. Bishop is again approved, that “the better view seems to be that that question should be left to the discretion of the trial judge, to be exercised with reference to the special facts of the case.” Both of these cases were indictments for misdemeanors.
Inasmuch as the statute under which the defendants were indicted permits more than one offense to be charged in a single count, we do not think that the defendants had the absolute right to demand of the attorney for the Commonwealth that he should elect for which of the several offenses he would prosecute. He might desire to prosecute for more than one. It was a matter resting in the sound discretion of the trial court whether or not an election should be compelled. This was to be determined by considerations entirely different from those which give the right to a specification of the particulars of the offense.
Specification, or a bill of particulars, is allowed in order to apprise the defendant of “the cause and nature of his accusation,” when the indictment is not sufficiently specific for that purpose; election, to avoid embarrassing him in
On account of the gravity of the punishment, this court has been more particular in compelling election in felony cases than in misdemeanors, but the same principle would seem to apply in the one case as in the other. While the Commonwealth must be permitted to charge an offense in various ways to meet the evidence as it may be adduced on the trial, if, by reason of charging several distinct offenses widely separated by time, place and circumstances, the de-r fendant will be seriously embarrassed in making his defense, whether the offense be felony or misdemeanor, the election should be compelled.
Upon a review of the cases and a consideration of the principle involved, we deem it best, where several distinct misdemeanors are charged in the same indictment, to leave it to the sound discretion of the trial court to determine whether or not there shall be an election, only remarking that where the evidence offered of one transaction is widely separated by time, place and circumstances from that offered of another transaction, so that the prisoner would be embarrassed in making his defense if compelled to try both at the same time, the Commonwealth should be compelled to elect on which one it will proceed.
Although the Commonwealth is active in the suppression of crime, and prompt and vigorous in its punishment, it is very jealous of the liberty of the citizen, and throws around him every safeguard of a fair and impartial trial. It gives him the “right to demand the cause and nature of his accusation,” thereby assuring him of all needful information of .the offense with which he is charged; it guarantees to him “a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty,” thereby assuring him a prompt trial, an impartial tribunal and a just verdict; and it warns the jury that they
A number of cases have been cited by the learned Attorney General to the effect that it is sufficient to charge a statutory offense in the language of the statute defining it, but they have no application to an omnibus charge of numerous offenses, all of which could not have been committed by one person at the same time, and which leaves the defendant in doubt and uncertainty upon which a conviction will be asked. State v. Terry, supra; United States v. Cruikshank, supra.
It is also said that section 7 of the act under consideration was taken from the West Virginia statute, which has been held to be a valid enactment by the Supreme Court of that State, and it has been argued by the Attorney General that by adopting the act of West Virginia the legislature also accepted the construction thereof by the Supreme Court of that State, including the determination of its validity and sufficiency. But it has been recently held by this court: “While the interpretation by the highest court of a State from which a statute is taken will be followed, the legislature cannot, by enacting a statute which has been held constitutional and valid by the highest court of another
On the trial of this case, after the Commonwealth had introduced two witnesses, Viola Ross and Mary Williams, who testified that they had bought the liquor with which they were made drunk from the defendants, and that they had also bought liquor from J. T. Thompson, the defendants offered J. T. Thompson as a witness, and proved by Thompson that the two prosecuting witnesses had not bought any liquor from him. The defendants then offered to prove by Thompson that the two prosecuting witnesses, Viola Ross and Mary Williams, broke open his house while he was at church, broke into his trunk and took out a gallon of whist key. The Commonwealth’s attorney objected to this testimony as being irrelevant, and the court sustained the objection, and refused to allow the defendants to introduce that evidence. This action of the trial court is assigned as error.
There was no error in the ruling of the court. The charge against the defendants was the sale of intoxicating liquor, and this charge was sustained by the evidence of the two witnesses mentioned. Evidence that the same two witnesses broke into the house of the witness Thompson, and stole a gallon of whiskey, and were afterwards found drunk, was wholly irrelevant to the offense with which defendants were charged; and the larceny alleged threw no light on the illegal sale. Both charges may have been true.
Objection is also made to the ruling of the trial court in granting and refusing instructions. Instructions “A” and “B,” given for the Commonwealth, were as follows:
“A.” “The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendants, John Pine and Sarah Scott,' or either of them, had in their, or his. or her possession, in their, or his, or her home, as the case may be, in the city of Roanoke,*845 Virginia, at any time within the time laid in the indictment in this case, more than one gallon of distilled liquor, or more than three gallons of beer, that this would be prima facie evidence that the said defendants, or the one so in possession of such distilled liquor, or beer, had the same for sale, although the jury may further believe from the evidence that said defendants, or the one so having in his or her possession, such distilled liquor or beer, acquired the same prior to November 1, 1916.
“The punishment for such an offense is by a fine of not less than $50.00 nor more than $500.00, and confinement in jail for a period of not less than one, nor more than six months.”
“B.” “The court instructs the jury that it is not alone an actual sale of ardent spirits, that constitutes an offense under the law, under which this indictment is drawn, but it is also an offense for a person to keep or store for sale, or to give away, or dispense ardent spirits under said law except in the manner therein provided; therefore, the court tells the jury, that although they may not believe from the evidence in this case that the defendants, or either of them, sold ardent spirits within the time mentioned in the indictment in this case, yet, if they do believe from the evidence in this case, beyond reasonable doubt, that the said defendants, or either of them, during the time laid In the indictment in this case, kept or stored ardent spirits for sale, or to give away, or dispense, as is alleged in the indictment, then they, or the one so keeping or storing for sale such ardent spirits, or to give away or dispense the same would be as guilty under the indictment in this case, as if they, or either of them, had actually sold or given away ardent spirits.”
Instruction “A” is in substantial conformity with section 65 of the prohibition act (Acts 1916, p. 215), and is free from objection. The act on this point makes no distinction
Instruction “B” told the jury, amongst other things, that if they believed that the defendants kept or stored ardent spirits for sale or to give away they would be as guilty as if they had actually sold or given away ardent spirits. Under different circumstances this instruction would be misleading, if not erroneous, as section 61 of the act allows one in his own home to give away ardent spirits “when the quantity of such spirits shall not exceed the quantity allowed by this act.” But instructions must be read in the light of the evidence offered on the trial. In the instant case, the evidence was of a sale and not of a gift, and at a restaurant and not in a home. The sale, if made, was illegal, no matter where made, or whether the ardent spirits were obtained before or after November 1, 1916, when the prohibition act went into effect. The instruction, therefore, could not have misled the jury.
Instruction No. 1, asked for by the defendants, was as follows:
“1. The court instructs the jury that if they believe from the evidence that the defendants had the liquor in their possession prior to November 1,1916, at which time the present liquor law came into effect, then such possession creates no presumption against them.”
The defendants could not have been injured by the refusal of this instruction, if it be conceded to be a correct statement of the law, as instruction 2, given at their in
“The court instructs the jury that if they believe from the evidence that the defendants purchased the liquor prior to November 1, 1916, and had it for their own use and not to sell and did not sell the same, they should find them not guilty.”
Instruction 4, asked for by the defendants, was as follows:
“The court instructs the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima facie evidence of guilt, still, if the evidence shows that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, then the prima fade evidence is overcome and the Commonwealth is then required to prove by clear, distinct and reliable evidence that the defendants had the same for the illegal purpose mentioned in the indictment and if the Commonwealth has not so proven, they should find the defendants not guilty.”.
If there was any error in refusing this instruction, it was harmless, as the court had already given, at the instance of the defendants, instruction 3 which sufficiently protected their rights. Instruction 3 was as follows:
“The court instructs the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima fade evidence of guilt, still if you believe from the evidence that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, you should find them not guilty.”
It is further insisted, however, on the part of the Commonwealth that instruction 4 was erroneous because it is. unlawful to keen, even in a home, more than one gallon of whiskey or etc. after November 1, 1916, no matter when or for what purpose scauired.
Affirmed.
Concurrence Opinion
concurring:
The case involves the preliminary and fundamental question—
1. Is section 62 of the Constitution of Virginia restrictive in its effect so that the legislature was without power to enact the statute, Acts 1916, p. 215, except with respect to the provisions of such statute which concern merely the “manufacture and sale of intoxicating liquors” — those portions of the statute prohibiting other acts than such manufacture and sale being, in such view of the statute, in conflict with said section 62 of the Constitution and void ?
This question being answered in the negative, the case involves the following further questions concerning the exercise by the legislature of its constitutional powers, namely:
2. Is the form of the indictment prescribed by section 7 of the act sufficiently specific — does it descend from the genus to the species, from the general to the specific allegations of the particulars of the acts charged, sufficiently to inform the accused of “the cause and nature of his accusation,” so as to comoly with the requirements of section 8 of the Constitution of Virginia?
3. Has the trial court any longer the discretion it formerly had, on motion of the accused, to require the Commonwealth. on the trial of the case, after it has introduced its evidence in chief, to elect on the charge of what offense, or offenses, it will ask the conviction?
These questions will be considered in their order as above stated.
1. With respect to question 1:
Upon the authorities referred to, and for the reasons
2. With respect to question 2:
The indictment in question is in the form prescribed ,by section 7' of the act, is for first offenses under section 3 of the act only, and under it the same punishment for each offense is prescribed, namely, the accused may be fined (for each offense) not less than fifty dollars nor more than five hundred dollars and be confined in jail not less than one nor more than six months.” See sections 3, 5 and 7 of Acts 1916, p. 216.
Omitting the formal parts, the indictment in the instant case was as follows:
“That John Pine and Sarah Scott, within the four days next prior to the finding of this indictment, in the said city of Roanoke, Virginia, did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, dispense, solicit, advertise and receive orders for ardent spirits.” .
The indictment charges the statutory offenses therein set forth in the language of section 3 of the statute which creates the offenses.
So far as the charges of the respective offenses in the indictment are concerned (laying aside for the present the consideration of the charges of the offenses being all contained in one count), the following may be said :
It is firmly settled in this State, in effect, by a long line of decisions, that (so far as the sufficiency of the charges themselves is concerned) the indictment, prior to the statute in question, would have been good and would have been sufficient to meet the requirements of section 8 of the Constitution of Virginia. Fletcher’s Case, 106 Va. 840, 56 S. E. 149; Rose’s Case, 106 Va. 850, 56 S. E. 151; White’s Case, 107 Va. 901, 59 S. E. 1101; Runde’s Case, 108 Va. 873, 61 S. E. 792; Clopton’s Case, 109 Va. 813, 63 S. E.
The effect of the majority opinion is, as I think, to overrule all of these cases.
In White’s Case, supra; Arrington’s Case, 87 Va. 96, 2 S. E. 224, 10 L. R. A. 242, and also Head’s Case, 11 Gratt. (52 Va.) 819, referred to in the majority opinion, are distinguished.
As stated by Judge Buchanan, in delivering the opinion of this court in Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677: “Because of the difficulty the Commonwealth has in prosecuting offenses of this kind, or for some other reason, there has been in this class of cases some relaxation of the strict rules as to pleading and the introduction of evidence which generally prevail in criminal cases.” And before the prohibition statute in question was enacted, the rule adopted in this State on this subject (which, however, is the same rule in principle generally prevailing everywhere and as to all crimes [1 Bish. Cr. Pr., sections 81, 82], is that, in such classes of cases, only the acts and circumstances which are of the essence of the statutory offense, or offenses, charged, {i. e., which are the essential ingredients thereof), need be set forth in the indictment.
The result of the decisions above cited is that it has been long established in Virginia by the decisions of this court, that the charge of statutory offenses of this character in the language of the statute creating them includes all that is of the essence of the offense, or offenses, except the laying of the venue and an allegation bringing the case within the period of limitation for the prosecution prescribed by the statute. To illustrate: These decisions hold that the place of the commission of such offenses need not be alleged, save the allegation of the county or city over which the trial court has jurisdiction; nor the time, save
This holding is sound, too, on principle.
What is said in the majority opinion and quoted from various cases, on the subject of an indictment in the language of a statute being insufficient to inform the accused of the cause and nature of the accusation against him, is true in general terms. But where the offense is malum prohibitum only, and the statute designates the acts, which it creates into an offense or offenses, the nature and cause of the offense are charged with ■ sufficient particularity in the indictment by the use of the language of the statute creating it, so that no further descent into particulars is necessary therein.
The cases of United States v. Cruikshank, 92 U. S. 543, 23 L. Ed. 588, and State v. Terry, 109 Mo. 601, 19 S. W. 206, cited and especially relied on in the majority opinion, do not involve the question under consideration, namely,
The statute so far individuates the offense when it, itself, designates the acts which it enacts shall constitute the offense or offenses created thereby.
In United States v. Cruikshank, supra, the indictment was for conspiracy under the 6th section of the act of Congress of May 31, 1870, known as the enforcement act (16 U. S. Stat. 140, C. 114 [Comp. St. 1916,- section 10183]), by which the offenses created thereby are made to consist in the unlawful combination, with an intent to prevent the enjoyment of any right granted or secured by the United States Constitution, etc. All rights are not so granted or secured. Whether one is so or not was a question of law to be decided by the court. The statute did not describe the whole offense — name the acts which would constitute the offense. Hence, the court held that the indictment should state the particulars to inform the court as well as the accused of the nature and cause of the accusation. There the particulars not covered by the allegations in the language of the statute were of the essence, or were essential ingredients of the offense.
In State v. Terry, 109 Mo. 601, 19 S. E. 206, the indictment was for an attempt to obtain money by fraud, in the form prescribed by statute for such an indictment. This form did not contain a description of the money, or the means used to obtain it. The court held that the two things last named were essential ingredients of the offense charged, were not covered by the allegations of the indictment, and, although the form of the indictment was as prescribed by statute, that statute was itself unconstitutional, in that it did not require all of the essential ingredients of the offense to be charged in the indictment.
These, therefore, were very different cases from one such as the instant case, where the statute itself under which it
Independent of authority elsewhere, however, the rule in Virginia on the subject has been firmly settled, as aforesaid, by the long line of decisions of this court above eited.
The majority opinion enumerates some of the acts designated by the statute in question as offenses under the statute, to-wit: (1) to transport for sale; (2) to advertise for sale; (3) to aid in procuring ardent spirits, and (4) to act as agent or employee in certain instances, as not sufficiently charged in the indictment. The last two acts named are not charged in the indictment in the instant case following the form of section 7 of the statute. Reference will be hereinafter made to the subject of the first named acts. I am unable to perceive why the charge in an indictment, that the accused did “advertise for sale * * * ardent spirits,” (the offense of advertising under section 3 of the act) is not as much a sufficient allegation of that act as the allegation that he did “manufacture,” or “sell,” or “offer, keep, store and expose for sale,” “give away,” “dispense,” “solicit and receive orders for ardent spirits.” All of the latter allegations, being in the language of the statute creating offenses of such acts, respectively, have been held (expressly as to some and by necessary inference as to others) by the long line of Virginia decisions aforesaid to be sufficient to comply with the constitutional requirement on the subject. The indictment put in issue the ultimate question of facts of whether the accused did “advertise for sale ardent spirits,” and in the case of advertising, prohibited by section 3 of the act, as in the cases of the other acts charged in the indictment, the latter put in issue the ultimate questions of fact, whether the respective acts charged were done by the accused. The circumstances attending
Hence, with respect to the character of offenses we are considering, charged in the indictment in the instant case, the precise point is this, the indictment need not use other language than the statutory language creating the offense —need not descend to other particulars in the charge of the commission of the offenses — except to lay the venue and bring the cause within the statutory period of limitation upon the prosecution.
The form of indictment prescribed by section 7 of the act fulfills these requirements. So does the indictment in the instant case. The latter charges the precise date on which the offenses charged are alleged to have been committed, although that particularity was unnecessary, as aforesaid, and lays the venue.
I cannot arrive at any other conclusion, therefore, than that the indictment in the instant case is sufficient to meet the requirements of section 8 of the Constitution of Virginia.
Hence, under the firmly settled rule aforesaid, established before the statute in question was enacted, so far as the particulars of the offenses charged in the indictment are concerned, the indictment itself gave to the accused all the information necessary for the preparation of his defense which the Constitution requires; and, therefore, the indictment needed no bill of particulars to aid it.
Indeed, if the practice of requiring a bill of particulars to be furnished in criminal cases, heretofore unused in Virginia, were adopted by us in practice, if that practice were made to accord with it as prevailing elsewhere (as indeed is noted in the majority opinion), it would not be manda
The majority opinion, while saying that the indictment is sufficient under section 8 of the Virginia, Constitution, yet holds it insufficient unless aided by a bill of particulars. The opinion holds that the indictment is sufficient on demurrer only and because the constitutional requirement is
I am not opposing the idea that the requirement of a bill of particulars in criminal cases, as in civil cases, would be in aid of the accused, in that it would lessen the burden otherwise resting upon him of coming to trial prepared to make his defense in all particulars against the charges against him put m, issue by the indictment, or that the appeal might not be very strong to the legislature to provide for such aid being extended to the accused in some criminal cases; but it seems to me'that it is significant that the legislature has never so provided, and further that our courts have never put such a practice into effect in any criminal case. And on an appeal to the legislature to enact such a provision, if made, I can understand how the legislature' might regard the Commonwealth in prosecuting the statu
Hence, the question involved in the proposition, that the court shall inaugurate the practice of requiring a bill of particulars in cases of the character under consideration, in turn involves, after all, the ultimate question, whether the statute in enacting, in effect, that an indictment charging the offenses as they are charged in the instant case, is in violation of section 8 of the Constitution of Virginia? As we have seen above, such question must, as I feei, be answered in the negative and in favor of the sufficiency of such an indictment.
It is true, as noted in the majority opinion, that section 7 of the said statute omits the charge of the offense of transporting ardent spirits for sale from the form of indictment thereby prescribed. This was a manifest clerical omission. Its effect is, clearly, only that, under an indictment follow
It results from the foregoing considerations, that the only change which section 7 of said act has made in the law, as it was aforetime, is to allow, in the charge of an offense or offenses under the statute, all of the offenses created by sections 3, 4 and 5 thereof, to be charged in one indictment.
As correctly pointed out in the majority opinion, if the indictment is sufficiently specific in its charges to be valid under section 8 of the Constitution of Virginia (and the act is not in contravention of section 62 of the Virginia Constitution), the power of the legislature to provide such form of indictment is plenary and the indictment is good. As we have above seen, the indictment does not contravene section 8, and the majority opinion agrees that it does not contravene section 62, aforesaid.
The conclusion necessarily follows that upon such an indictment as that in the instant case, the accused is put upon his defense of all of the offenses charged in the indictment and must come to trial prepared to defend against all of such charges.
From the standpoint of the accused, the hardship and danger of injustice resulting from such a requirement as that mentioned in the last above paragraph is more theoretical than real. It is, in truth, less burdensome in loss of time and expense to the accused to meet a number of charges in one trial than in a number of separate trials. The accused has to bring his witnesses to meet all of the charges upon which he is in fact indicted, either in several,
Touching the foregoing subject, and with respect to misdemeanors, as stated by Mr. Bishop, 1 Bishop Cr. Pr. (4th ed.), sec. 458: “* * * the doctrine of the English and most American courts is * * * that if a man has been engaged in a course of unlawful conduct resulting in a hundred legally distinct petty offenses, and the executive officers of the government have determined to exercise their right, not controllable by the judiciary, to bring him to trial for all, it is a piece of sheer oppression to him to compel them to find against him a hundred indictments, and require him to stand his trial a hundred times, instead of answering to all at once. Moreover, on broader views, some deem, the author submits rightly, that the joining in proper cases of distinct misdemeanors in one indictment, followed by their trial at one hearing before the petit jury, and the punishment of each as though on a separate indictment, are
Hence, question two above must be answered, I think, in the affirmative.
3. Coming now to the consideration of question three above, concerning the right of the- accused to have the Commonwealth elect in such a case as that at bar.
In felony cases as a general rule, subject to a few exceptions not material to be noted here, there can be but one conviction of a felony under one indictment, although in the discretion of the trial court, several separate felonies may be allowed to be charged therein, if in several counts, a separate count for each offense. Hence, the right of the accused to have the Commonwealth make the election aforesaid on the trial of the case always exists in all felony cases, except in the few instances where there may be more than one conviction under one indictment. Dowdy’s Case, supra; Lazier’s Case, 10 Gratt. (51 Va.) 708; Anthony’s Case, 88 Va. 847, 14 S. E. 834; Johnson’s Case, 102 Va. 927, 46 S. E. 789; Kane v. People, 8 Wend. (N. Y.) 211; Mitchell’s Case, 93 Va. 775, 20 S. E. 892.
In misdemeanor cases the rule is different. Prior to the prohibition statute we have under consideration, there might be more than one conviction of different misdemeanors under one indictment. From very early times, it has been universally held that, where the misdemeanors are of the same general nature and their punishment is the same (or, indeed, where the punishment is similar), when the mode of trial is the same and the convenience of the court or the
Therefore the doctrine of the right of the accused to have the Commonwealth elect on which charge or charges in the indictment it' will ask conviction, before the prohibition statute under consideration was enacted, was uniformly applied in misdemeanor cases only where there could not be conviction of all the offenses charged in the indictment in the one trial. And the settled rule was that there could be only one conviction of one offense in one trial in misdemeanor cases only where, either (1) there is but one count in the indictment (Hatcher & Shaw's Case, supra; Dix’s Case, supra, in which there was only one count in the indictment), or (2) where it is made to appear to the trial court that the accused would be “injured in his defense by the joinder” (of several distinct misdemeanors, different in their nature and in their punishment or mode of trial), “or for its (the court’s) own convenience, or to conserve the administration of public justice,” such joinder should not be allowed in one trial. (1 Bish. Cr. Pr., secs. 452, 453.)
Hence, touching the rule (2) above referred to, by which the judicial discretion of the trial court is guided (independent of statute), in not allowing the joinder of different offenses in misdemeanor cases, clearly, as shown by the authorities, the number of such offenses, or that the offenses are “widely separated by time, place and circumstances,” are not grounds upon which the judicial discretion to apply such rule can be invoked. (1 Bish. Cr. Pr., secs. 452, 458.) I am constrained, therefore, to the view that the majority opinion, in laying down a contrary rule, is suggesting a new proposition, unknown to the law heretofore. The rule laid down by Mr. Bishop was the established practice in Virginia, independent of the aid of any statute. In Mitchell’s Case, supra, it is said: “In the case, however, of misdemeanors, which are punishable by fine and imprisonment,
Now concerning joinder (independent of a statute authorizing it) of the other offenses created by section 8 of the act, with charges of illegal sales, in one indictment followed by the trial and conviction of all of them in one trial: As we have seen above, the general rule prevailing in the English and most American courts is, that where a course of unlawful conduct is charged (as in the indictment in the instant case) in violation of a, statute, an unlimited number of petty offenses (misdemeanors), resulting from any such conduct, may be properly joined in one indictment and one trial. 1 Bish. Cr. Pr., sec. 458. It is not apparent, as an abstract proposition, that it would be more injurious to the accused to have to defend in one trial a charge of illegal manufacturing, joined with a charge of illegal selling of ardent snirits, or several of either, in violation of the same statute, than so to defend a number of charges of such different sales only, ividely separated in
Further: Touching the rule (2), above referred to, by which the judicial discretion of the trial court is guided (independent of statute) in not allowing the joinder of different offenses in misdemeanor cases, where “the punishments are not the same.” As we have seen above, the indictment in the instant case is for first offenses under section 3 of the act, and the punishment for each offense charged in "the indictment are, under section 5 of the act, the same.
Now section 7 of the prohibition statute, in the view I take of it, did not go beyond allowing to be charged in one count of the indictment the several different offenses which, under the established practice in this State prior thereto, might have been properly charged therein under separate counts, and allowing the several convictions to follow accordingly in the one trial. In this matter also, therefore, the statute under consideration merely adopted and made statutory the rule on the subject already settled by this court, with the sole modification that the statute applies the rule to an indictment containing the several charges in only one count.
That this is true will even more clearly appear from the following further considerations:
The doctrine of the election aforesaid was applied to misdemeanor cases of the character of the instant case, for the reasons so lucidly expressed by Judge Buchanan in the leading case on this subject aforesaid (Hatcher & Shaw’s Case, 106 Va., at pp. 830-1, 55 S. E. 677). Such reasons apply only to a case where there cannot be conviction in the one trial of all the offenses charged in the indictment. (In that case there could be but one conviction as the law then stood, because there was but one count in the declaration.) To cases in which, in one trial, there cannot be conviction of all of the offenses charged, such reasons are properly applicable. But not so as to a case where there can be conviction in the one trial of all the offenses charged. If in a case where there can be more than one conviction, the Commonwealth may be compelled to elect one offense charged, or two, or three, or any number of such offenses, for which it will ask for conviction, less in number than all of the of
In regard to the point urged for the accused in the instant case, that for the offense of “advertising” charged in the indictment, a different mode of trial is prescribed by section 19 of the act than is prescribed for the offenses created by section 3 of the act, and that for this reason such offense cannot be joined with the other offenses charged in the indictment. It is true that (independent of statute) where the mode of trial is not the same, there can be non-joinder of the offenses in the same indictment (1 Bisch. Cr. Pr., section 453); but under the rules applicable to the construction of statutes, section 19 of the act must be held to refer to advertising by methods specified in that section, and section 3 to advertising in some method other than those specified in section 19 aforesaid. This relieves the court from the consideration, in the instant case, of
It may be proper to add that the majority opinion seems to consider the procedure by motion of the accused to have the Commonwealth elect as aforesaid as in aid of the indictment in the lack of sufficient specifications in its charges to inform the accused of the “cause and nature of his accusation” to enable the latter to prepare his defense. Such motion is wholly unsuited to serve such a purpose. It comes too late therefor. It is settled that it is properly to be entertained by the court only after the Commonwealth has closed its introduction of evidence in chief, Hatcher & Shaw’s Case, supra. It is manifestly then too late for the Commonwealth to furnish the accused with specifications of “the cause and nature of his accusation,” to comply with that constitutional requirement, or aid in complying with it, in any true sense, or substantial way.
The use of the motion in practice has been a wholly different one. Where there cannot be conviction in the one trial of all of the offenses charged in the indictment, the accused is informed on what charge or charges the conviction which can be had is asked. Thus time and expense to the accused is saved in rendering it unnecessary for the latter to offer evidence to meet other charges and the mind of the jury is brought to the consideration of a single offense. Hatcher & Shaw’s Case, supra,. These are important results, but, aside from the impracticability of their attainment without unduly taking away the rights of the Commonwealth, aforesaid, in cases where there may be conviction in a single trial of all of the offenses charged, above noted, they are objects entirely different from that of having the accused notified, in time to prepare his defense, of what charges he must come to trial prepared to meet. Hav
In regard to the point urged in the petition that the verdict should have specified of which of the offenses charged in the indictment the jury found the accused guilty, because otherwise the verdict is no protection against future prosecutions, it should be said that, all of the offenses charged in the indictment having been properly charged, the accused, by the trial thereunder, has been put once in jeopardy for all of those offenses committed "within twelve months last past” next preceding the indictment, and can plead autrefois convict or c/utrefois acquit in bar of any subsequent prosecution for any and all of such offenses within such period.
In connection with all of the foregoing views and conclusions, it is assumed that the grand jury, in the instant case, in fact found a true bill against the accused for all of the several offenses charged in the indictment. It is elementary law that the accused could not be put to trial for any of such offenses for which he was not indicted, where the statute, as in the instant case, requires the procedure by indictment. The indictment is the safeguard provided by the statute to save the accused from unfounded charges. To ilh^trate: If it be true that the grand jury in fact
This indeed would be a hardship — is in truth the chief hardship of which the accused complains in the instant case —and, if it appeared of record to exist in such case, the judgment should be unhesitatingly reversed. But the indictment in the instant case does not merely follow the form of the indictment provided for in section 7 of the act; it does not contain the charges of all the offenses therein named. This is some indication that the grand jury, in the instant case, found a true bill as to all of the offenses in fact charged in the indictment. However, after indictment found and the grand jury is discharged, their proceedings in this particular cannot be inquired into. The trial court, indeed, before the discharge of the grand jury, has the whole matter under its control. It may, by polling the grand jury and inquiry as to what charges stated in the indictment they have found a true bill, ascertain that fact and eliminate any chance of charges being left in the form of the indictment as drawn and retained therein as charges as to which a true bill is found, when in fact no true bill
Manifestly, the question as to whether there is a lack of a true bill as to any of the charges stated in the indictment cannot be raised by the motion to have the Commonwealth elect on which charge, of charges, it will ask for conviction. Such question must and can be raised only in the preliminary proceedings aforesaid before the trial court, before the discharge of the grand jury.
The question under consideration not having been raised in the instant case so as to make the fact appear of record that the accused were tried for any offense or offenses for which they were not in fact indicted, I think there should be no reversal of the judgment of the trial court on such ground.
I concur in the other conclusions reached in the majority opinion on the special points arising in the instant case, and in the result of affirmance of the judgment of the court below.
For the foregoing reasons, however, I feel constrained to file this separate opinion.
