Commonwealth v. Dove , 2 Va. 26 ( 1815 )

The defendant was presented at the Superior Court of Rockingham, for retailing spirituous liquors without license. The usual rule, to shew cause why an Information should not be filed, having' been served on him, and he having failed to shew good cause, the following Information was filed: “ Rockingham county, to wit: Be it remembered, that on the 26th April, 1813, Briscoe G. Baldwin, *the Attorney prosecuting for the Commonwealth in the Superior , Court of the said county, came into Court, and gave the said Court to understand and be informed, that a certain George Dove, merchant, of the county aforesaid, on the 6th day of March, in the year 1812, at the store of the said Dove, in the said county, and within the jurisdiction of the said Court, did unlawfully, and without having a license therefor, retail and sell spirituous liquors, to wit: wine, whiskey, cider, beer, rum and brandy, and mixtures thereof, by the pint and half pint, to be drank at the place where sold, to wit: at the store of the said Dove, in the county aforesaid, contrary to the Act of the General Assembly in that case made and provided, and against the peace and dignity of the Commonwealth,” &c. The defendant pleaded riot guilty, and the jury found him guilty. He thereupon moved to arrest the judgment, for the following reasons. 1. Because it is not stated in the Information to whom the spirituous liquors were sold. 2. Because the Information is uncertain and defective. 3. Because no prosecutor is named at the foot of the Information, nor any reason given for the omission. Note. At the foot of the Information, are these words : “ This Information is filed by order of the Court, on the presentment of the Grand Jury. Briscoe G. Baldwin, Attorney for Commonwealth.” And the Presentment was made, as appears at its foot, “on the Information of Philip Stultz.”

There was also a motion for a new trial, as follows: On the motion of the defendant, and it appearing to the satisfaction of the Court, that the defendant stands convicted at thjs.Term in another prosecution, for selling spirituous liquors, to wit: half a pint of whiskey to one Moyers, at the same time and place, when and where he is charged in the present Information, with having sold half a pint of whiskey to one Pulk. [Note. That fact appeared by the Presentment, but not by the Information;] and the. defendant alleging, that both sales constitute but one offence, it is ruled that the prosecutor for the Commonwealth shew cause on the first day of the next Term, why a new trial should not be granted to the defendant.” The Superior Court adjourned to this Court the following questions, or matters of Daw. 1. Whether the two sales mentioned in the rule, constitute but one offence ; and if so, ought the Court to grant a new trial, quash the Information, or put the defendant to plead au-trefois convict ? 2. If the two sales . mentioned *in the said rule, 'constitute two distinct offences, notwithstanding they were made at the same time and place, ought the judgment to be arrested because the Information omits to state the person’s name to whom the liquor was sold ? Or, because no prosecutor was named at the foot of the Information ?

On the question, whether the Information ought not to have named the person to whom the liquor was sold, a difference of opinion occurred. Judges White, Brockenbrough and Daniel, were of opinion that the omission was fatal even after verdict; but a large majority, Stuart, Carrington, Holmes, Sem-ple, Allen and Randolph, were of a contrary opinion. The former thought, that without naming the person or persons to whom sold, the defendant was not enabled properly to make his defence, and especially that he could not plead effectually autrefois convict, or acquit, to a subsequent prosecution for the same thing : and that a case in 1 Shower, 389, 390, where an Information for extorting divers sums for ferriage, from divers subjects, was held too uncertain, supported their opinion. The latter considered, that when in common presumption it may be vejry difficult, if not impossible, to know the names of the persons referred to, it may be good without naming them; and relied on Rex v. Gibbs, 1 Strange, 497, where Indictment for selling.beer, “ to divers faithful subjects of our Dord the King, to the jurors unknown,” was held good; the Court there saying, that “ the informer might not know the name of the person to whom it was sold ; it is an offence, let it be sold to whom it would.” Also, see on this subject, Hawk. B. 2, ch. 25, §71.

The following was entered as the judgment of the Court:

“ The Court doth decide, that the matters alleged by the plea in arrest of judgment, in the record of said case, are not sufficient in Daw to arrest the judgment, and that the same ought not to be arrested ; nor ought a new trial to be granted ; the Court being of opinion, that the selling of spirituous liquors by retail, without license, to two distinct persons at the same time and place, constitutes two separate and distinct offences, and not one offence only.”