Dix v. Commonwealth , 110 Va. 907 ( 1910 )

Harrison, J.,

delivered the opinion of the court.

This writ of error is to a judgment against the plaintiff in error for unlawfully selling intoxicating liquors.

We are of opinion that the circuit court did not err in overruling the demurrer to the indictment and the motion to quash the same upon the ground that it fails to give the accused notice of the charge against him. The indictment sets forth “that Frank'Dix, within six months last past, in White Stone Magisterial District, in the county of Lancaster, did unlawfully sell and deliver intoxicating liquors and mixtures thereof, against the peace and dignity of the Commonwealth of Virginia.” The sufficiency of this indictment has been sustained by repeated decisions of this court. Fletcher’s Case, 106 Va. 840, 56 S. E. 149; White’s Case, 107 Va. 901, 59 S. E. 1101; Runde’s Case, 108 Va. 873, 61 S. E. 792.

We are further of opinion that there was no error in overruling the motion of the defendant, asking that the Commonwealth be required to elect some specific sale before the introduction of any testimony on behalf of the Commonwealth.

This question has been considered and settled by Hatcher’s Case, 106 Va. 831, 55 S. E. 677. It is there said, citing Bishop’s New Crim. Proc., sec. 462: “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; but as Mr. Bishop says, whatever is done at the earlier stages of the trial, plainly, as a general rule, the election should be required before the prisoner opens his defense.”

The record here shows that, at the conclusion of the 'Com- ' monwealth’s evidence, the court, in the exercise of its discretion, required the prosecuting attorney to specify the offense for which he would ask a conviction. This was done, and it was upon the specific offense then indicated that the conviction was had. In this the court followed the general rule of practice established in Hatcher’s Case, and the record furnishes no ground for making this case an exception to that rule.

We are further of opinion that there was no error in the court’s refusal to set the verdict of the jury aside as contrary to the law and the evidence. The case is before this court as upon a demurrer to the evidence, and under that rule the evidence is ample to sustain the conviction.

We are further of opinion that there was no error in refusing to grant a new trial upon the ground of after-discovered evidence. The record shows that the evidence relied on in support of this motion was known to the accused during the progress of the trial, and that he did not ask for either delay or process to secure the attendance of the witness whose presence was desired. Hot until after the verdict was rendered was the materiality of this witness suggested.

There is no error in the judgment complained of, and it must be affirmed.

Affirmed.