| Va. | Sep 7, 1914
delivered the opinion of the court.
The first error assigned in this case is to the action of the court in overruling the demurrer of the accused to the indictment upon which he was tried.
There are two counts in the indictment, one for the violation of section 3853 of the Code, and in the other the offense intended to be charged was one of those created by section 145a of Pollard’s Code. It is not claimed by the accused that the first count is not sufficient; his objection applies solely to the second count.
The demurrer being general or to the entire indictment, and not to each count, the court did not err in overruling the demurrer, even if the second count be bad; for it is well established that such a demurrer must be
Upon the trial the jury found the accused guilty 'as charged in the second count, and said nothing as to the first. The effect of this finding was to acquit him of the offense charged in the first count. Stuart’s Case, 28 Gratt. (69 Va.) 953 and cases cited.
The first and second subdivisions of section 145a of Pollard’s Code provide:
“(1) No candidate for congress, or for either house of the general assembly of Virginia, or any State, county, district, or municipal office, shall expend, pay, promise, loan, or become pecuniarily liable in any way for any money or other valuable thing to influence voters in his behalf, or permit the same to be so used, with his knowledge and consent, by his friends or adherents in any election, primary or nominating convention; provided, however, that no expenditure made by any candidate or his adherents and friends for the purpose of printing or advertising in some newspapers, or in securing suitable halls for public speaking at a reasonable price, shall be deemed illegal.
“(2) That no person shall expend, pay, promise, loan, or become pecuniarily liable in any way for, any money or other valuable thing in behalf of any candidate for office at any election, primary or nominating convention held in this Commonwealth.. Any person or candidate violating any of the provisions of this or the preceding section of this act shall be subject to a fine of not less than one hundred nor more than one thousand dollars, or confined in jail not less than one nor more than twelve months.”
The object of the provisions quoted was to prevent a candidate for any of the- offices mentioned, and other persons, from using money, credit or other thing of
The second count, that upon which the jury based their verdict, states that the accused “did on behalf of one G. F. Kiser, who was then and there a candidate for the office of sheriff of Dickenson county, Yirginia, at an election to be held in the said county on the 7th day of Nor vember, in the year 1911, expend, promise, pay, loan and become pecuniarily liable for moneys and other valuable things to various persons whose names are to the grand jurors unknown.” It not only does not contain any averment that the things the accused was charged with doing were done for the purpose of influencing a voter or voters in behalf of Kiser as a candidate, but it is not even averred that the things which it is stated the accused did were done for him as a candidate for office. It merely states that they were done in his behalf at a time and in the county in which he was a candidate for the office of sheriff. It may, perhaps, be inferred from the averments of the count that the acts which it is averred the accused did were done in Kiser’s behalf as a candidate for office, but even if this were so it would not be sufficient; for an inference from facts alleged can never supply a total want of averment of an essential part or element of the offense. Pea’s Case, 2 Gratt.
The facts stated in the second count may all be true and still the accused not be guilty of the offense intended to be charged against him. When this is the case, it is •well settled that the accused cannot be lawfully convicted of such offense; Young’s Case, 15 Gratt. (56 Va.) 664, 666; Old’s Case,. 18 Gratt. (59 Va.) 915, 931; Boyenton’s Case, 114. Va. 841, 849, 76 S.E. 945" court="Va." date_filed="1913-01-16" href="https://app.midpage.ai/document/boyenton-v-commonwealth-6812766?utm_source=webapp" opinion_id="6812766">76 S. E. 945, and cases cited.
It is further settled that where no offense is charged the appellate court will reverse the judgment against the accused, though'no motion in arrest of judgment was made in the trial court. Old’s Case, 18 Gratt. (59 Va.) 915; Mathews’ Case, Id. 989, 999.
Ro offense being charged in the second count, this court cannot look to the evidence to see whether the offense intended to be charged has been proved, but must render judgment in favor of the accused. Old’s Case, 18 Gratt. (59 Va.) 915, 931; 1 Bishop’s Cr. Pro. (2nd ed.) sec. 1010.
The judgment must be reversed, and this court will render judgment in favor of the accused non obstante veredicto.
Reversed.