Thomas v. Commonwealth , 90 Va. 92 ( 1893 )

Lewis, P.,

delivered the opinion of the court.

This was a prosecution in the county court of Russell county against the plaintiff in error for a violation of the local option law. There was a demurrer to the indictment, which was. overruled, whereupon issue was joined on the plea of “ not guilty.” The jury found the defendant guilty, and assessed a fine against him of $100, and there was judgment accordingly. To this judgment the defendant applied to the judge of the circuit court for a writ of error, which was refused, whereupon, on his petition, a writ of error was awarded by this court.

The indictment chai-ges that the defendant, in October, 1891, “ at his dwelling house, in the Lebanon magisterial district of said county, did unlawfully sell intoxicating liquors, wine, ardent spirits, spirituous or malt liquors or mixturen thereof.”

The first ground of demui'rer relied upon here is that the indictment is in the disjunctive. But this objection is met by Morgan’s Case, 7 Gratt., 592. In that case the indictment was for unlawfully selling rum, wiue, brandy or other spirituous liquors, and was demurred to, on the ground that the charges were laid in the disjunctive; but the demurrer was overruled by the trial court, which ruling was affirmed by the appellate court. This case was decided in 1850, and has ever since been followed as authority in Virginia in similar cases.

It is next insisted that the demurrer ought to have been sustained, because “the local option act” of February 26, 1886 (Acts 1885-’86, p. 258), was repealed by section 4202 of the Code, and because the provisions of chapter 25 of the Code, in regard to local option, have never been put in force in Russell county.

We are of opinion that this position also is untenable. Granting that by virtue of the said section the act of February 26, 1886, gave way to the provisions of chapter 25 of the Code,, on the same subject, it does not follow that what was done under the said act, prior to the going into effect of the Code,, was thereby undone or set aside. So that the result of the election which was held in Russell county on the 1st day of' ■July, 1886, under the above mentioned act, was not aifected by the subsequent adoption of the Code.

It is contended, however, that there is nothing to show that the Lebanon magisterial district voted “ against license” at that election. But this was a matter of which the trial court, according to Savage's Case, 84 Va., 582, was bound to take judicial notice, and the question was decided against the defendant; nor is there anything to show that it was erroneously decided. There is, indeed, an order of the county court copied into the record of the present case, upon which the defendant relies, which is as follows, to wit:

“At a court of quarterly session continued and held for Russell county at the court-house thereof on Thursday, the 8th day of June, 1886, E. S. Finney, J. B. Seacatt, and W. R. Akers, commissioners of election .for Russell county, this day filed their certificate of the special election held on the 1st day of July, 1886, upon the question of licensing or not licensing the sale of intoxicating liquors in said county, and report a majority of 713 votes against licensing the sale of intoxicating liquors in said county.”

This order was evidently entered, not in June, 1886, but after the 1st of July of that year. The mistake is doubtless that of the copyist; for the transaction referred to occurred after the 8th of June; and, besides, we must take judicial notice of the fact that the June term of the county court of Russell county is not a quarterly term. The quarterly terms of that court are, or were when the order in question was entered, the April, July, September, and December terms (Acts 1885-’86, p. 570). Moreover, the act of February 26,1886, required a copy of the certificate of the canvassers of the election returns to be laid before the county court at its next term after any election held under the act, and the presumption is that this requirement of the statute was complied with in the present case.'

It is true the order does not state the result of the election in the Lebanon magisterial district, nor was it necessary that it should. The act did not require a copy of the certificate to be spread in extenso on the order book; all it required was that a copy should be laid before the court; and, for aught the record shows, the copy that was laid before the court was in the form prescribed by the statute, and showed that the Lebanon district voted, as the county did, against license.

Note. — Subject of judicial notice as to what liquors are intoxicating as well as the question what liquors are within the statutory restrictions on the sale of “ spirituous,” “vinous,” “fermented,” and other intoxicating liquors is treated in a note to Lanily v. State (Miss.), 2 L. R. A., 645.- — Reporter.

The only remaining assignment of error is that the evidence does not show that the liquor sold by the defendant was intoxicating. It shows, however, that it was apple brandy, and that apple brandy is intoxicating is a matter of common knowledge, of which the court will take judicial notice. 1 Greenl. Ev. (14th ed.), sec. 5, note (b), p. 10.

Judgment affirmed.