Barker v. Commonwealth , 133 Va. 633 ( 1922 )

Prentis, J.,

delivered the opinion of the court.

The accused has been convicted of the illegal sale of ardent spirits, sentenced to imprisonment for six months, and fined $500. He assigns and relies on two errors.

1. Before the trial began he moved the court to require the attorney for the Commonwealth to furnish him with a bill of particulars. As the indictment was in the form authorized by section 7 of the prohibition act (Acts 1918, p. 578), he was entitled to know specifically for which of the several • offenses with which he was charged he was to.be prosecuted. Pine & Scott v. Com’th, 121 Va. 812, 93 S. E. 652. In response to this motion, the prosecutor stated that he would prosecute only for three of the offenses charged in the indictment, namely, for selling, transporting and giving away ardent spirits. The specification as to the sale is as definite as would have been necessary in an indictment for the illegal sale of ardent spirits before the enactment of the statute authorizing the form of indictment now permissible under the Prohibition Act. It seems clear that the bill of particulars now necessary under such an indictment should not be required to be more specific than a separate indictment or count for such an offense. It is admitted by the attorney for the accused that in such an indictment “it is not necessary to allege a sale to any particular person at any particular time, so long as the time is within one year prior to the finding of the indictment,” and this is well established by the precedents in this State. Commonwealth v. Dove, 2 Va. Cas. (4 Va.) 26; Hulstead v. Commonwealth, 5 Leigh (32 Va.) 724; Fletcher v. Commonwealth, 106 Va. 846, 56 S. E. 149; Runde v. Commonwealth, 108 Va. 873, 61 S. E. 792; Clopton v. Commonwealth, 109 Va. 813, 63 S. E. 1022; Dix v. Commonwealth, 110 Va. 907, 67 S. E. 344.

2. He also complains that the court erred in refusing to set aside the verdict upon the ground that the evidence was of such a vague and uncertain character as to time and place that he might easily hereafter be indicted, tried and convicted on the same state of facts. As to this it is only necessary to say that the evidence sufficiently identifies three illegal sales of ardent spirits to the same purchaser within the year, the places of such sales and the presence of another witness on two of the occasions. Of these sales he has been convicted, and this conviction can be pleaded in bar of any future prosecution for either of these offenses. Hitt v. Commonwealth, 131 Va. 752, 109 S. E. 597.

Affirmed.