Jeffries v. Commonwealth , 113 Va. 773 ( 1912 )

Harrison, J.,

delivered the opinion of the court.

The indictment in this case charges the plaintiff in error with unlawfully selling and dispensing ardent spirits between midnight of Saturday, July, 1910, and sunrise of the succeeding Monday morning. There is no charge that the accused was selling ardent spirits without a license, but the prosecution is for a violation of the statute prohibiting the sale of ardent spirits on Sunday, and the indictment is, in form, under section 3804 of the Code, which has been repealed by section 19 of the act of March 12, 1908, known as the Byrd law (Code, Vol. 3, .p. 778), which simply provides that it shall be unlawful for any person to sell ardent spirits on Sunday, and does not, as provided by section 3804, make the violation of the statute to consist of selling spirits between twelve o’clock on Saturday night and sunrise of the succeeding Monday morning. Section 27 of the Byrd law provides a different punishment for its violation from that prescribed by section 3804 of the Code; and section 35 declares that all acts and parts of acts inconsistent therewith are thereby repealed. So that the only existing statute making it unlawful to sell ardent spirits on Sunday is the act of March 12, 1908, known as the Byrd law, which provides that no person shall sell ardent spirits on Sunday. ■

• As Sunday is from twelve o’clock Saturday night until that hour Sunday night, .the charge of the indictment, that the sale was between midnight of Saturday and sunrise of the succeeding Monday morning, may be true, and yet the accused be innocent of violating the statute, because if the sale was made after twelve o’clock Sunday night and before sunrise Monday morning, it was made at a time not inhibited by the statute.

It is clear, therefore, that the demurrer to the indictment should have been sustained, because the sale, could have been made as therein charged and still not have been a violation of the law.

The judgment complained of must be reversed, the verdict of the jury set aside, and this court will enter the order the lower court ought to have' entered, sustaining the demurrer to the indictment and dismissing the prosecution.

jReversed.