141 Va. 589 | Va. | 1925
delivered the opinion of the court.
The plaintiffs in error were indicted for a violation of the prohibition law. They were found guilty and sentenced to a fine of $500.00 each and confinement in jail for a period of five months. In pronouncing judgment the trial court added that unless the fines and costs were paid the defendants should be confined for an additional term not to exceed six months.
The indictment contained three counts. The first count is what is known as the omnibus count. The second count charged that the defendants “did unlawfully have in their possession ardent spirits” and the third count charged that they “had unlawfully received ardent spirits.” On the day before that set for the trial the defendants appeared by counsel and demanded a bill of particulars. In response to this demand the attorney for the Commonwealth filed a statement in writing, as follows: “The Commonwealth expects to prove
The charges in the second and third counts were in the most general language which gave no time or place except the year and the county. For instance, count two is as follows: “The jurors aforesaid upon their oaths aforesaid do'further present that Daniel Webster and Ralph Webster, within one year next prior to the finding of this indictment, in the said county of Rockingham, did unlawfully have in their possession ardent spirits against the peace and dignity of the- Commonwealth of Virginia.”
The Attorney-General insists that the defendants were not entitled to a bill of particulars except as to count 1 of the indictment. Whether or not counts 2 and. 3 are specific enough, it is unnecessary for us to decide as we are of opinion that the bill of particulars furnished by the prosecuting attorney limited the offenses for which he would prosecute to the causes stated in his bill of particulars, and was in effect an abandonment of any prosecution under counts 2 and 3.
Under former statutes it has been held that ordinarily time is not of the essence of the offense.and need not be accurately stated; that the name of the purchaser at an
In the bill of particulars furnished by the prosecuting attorney, the allegation that the defendants stored ardent spirits for sale on their premises, the words “on their premises” were descriptive of the place of storage, and while it was unnecessary probably to have stated the place, yet having stated it, it was necessary to prove it. Mitchell v. Commonwealth, ante, page 541, 127 S. E. 368, decided at this term.
We do not undertake to decide what was necessary to be stated in the bill of particulars in all cases further than to say that every one accused of crime is entitled to have stated in plain and unequivocal terms the offense for which he is to be prosecuted. This much will be required even in a civil case. The State has no desire to leave one of its citizens in doubt or uncertainty as to any offense charged against him. Prosecuting attorneys know, or ought to know, in advance what they can prove, and ordinary justice demands that they should give the accused a fair statement of the offense for which he is to be prosecuted.
After the trial began and the Commonwealth had introduced a portion of its evidence, the attorney for the Commonwealth stated to the court that one of the witnesses for the Commonwealth had that day been brought from the State convict road force, and that he
The policy of the law is to allow amendments which tend to the furtherance of justice where they do not seriously prejudice the rights of the accused. Even indictments which do not change the nature of the case may be amended at the bar under sections 4876, 4877 and 4878 of the Code. The question presented by this assignment of error, however, was decided adversely to the position of the accused in Jennings v. Com’th, 133 Va. 726, 112 S. E. 602. While some of the facts of that case are different from the facts of the instant case, the principle there announced covers the instant case. It is not alleged by the accused that they suffered any injury or injustice by reason of the amendment of the bill of particulars.
Under the bill of particulars, as thus amended, the Commonwealth was limited in its prosecution against the accused, (1) to proof of the unlawful transporting
In the brief of the Attorney-General it is admitted “that after a bill of particulars has been furnished the defendants, under the order of the court, the Commonwealth’s attorney cannot travel beyond the facts which it notifies the defendants it expects to prove, and prove other and different facts which arte not included in the bill of particular's. A long line of decisions, both English and American, as well as the reason for permitting a motion for a bill of particulars, upholds this statement of the law.” But he seeks to avoid the effect of it by saying that the bill of particulars applied only to count 1 of the indictment. We do not take this view of it. To say the least of it, the defendants had the right to believe that the prosecution would be limited to the causes stated in the bill of particulars. Having taken this view, the Attorney-General admits himself out of court as to evidence of any other offense than that stated in the bill of particulars as amended.
The first six assignments of error related to the admission of testimony with reference to sales, possession or dealing in whiskey in the city of Harrisonburg. All of this testimony was admissible under paragraph 3 above mentioned of the bill of particulars. Consequently these assignments of error are not well taken.
The seventh assignment of error is to the action of the court in refusing to instruct the jury to disregard the answer of a witness for the Commonwealth to the following question: “Is there any earmark about any of those jugs?” the witness having testified that a certain
The eighth assignment of error is to the action of the trial court in adjudging that the defendants be confined in jail “until said fines and costs be paid, the additional term, however, for nonpayment of fine and costs not to exceed six months for either of said defendants.”
This sentence was imposed under section 5f of Acts 1922, chapter 345, page 573, amending the prohibition law. The objection is that this section is not embraced in the enacting clause of the act. The title of the act is: “An act to amend and re-enact sections 5, 14 * * of an act approved March 19, 1918 * * * and to add to said act the following new sections * * 5|, 5i, 5| * ' The enacting clause follows the title down to the new sections to be added. These are described as follows: “And the following new sections and subsections to be numbered sections five and one-half, twenty-one and one-quarter,” etc., omitting section 5f. No question is raised as to the sufficiency of the title to the act, nor as to the existence of an enacting clause, but the sole objection is that section 5| is not mentioned in the enacting clause and hence was never enacted. The legislative intent to enact section 5j as
It is Anally assigned as error that the trial court refused to set aside the verdict. There is abundant evidence to support the verdict. Indeed, the offense charged in paragraph 3 of the bill of particulars is fully proven by witnesses for the Commonwealth, and none were introduced for the defendant.
We find no error in the judgment of the trial court and it is affirmed.
Affirmed.