Hulstead v. Commonwealth , 5 Va. 724 ( 1835 )

Duncan, ./.

delivered the resolution of the court. The court is unanimously of opinion, that on the trial of an indictment for retailing spirits without a license, charging that the sale was made “to persons to the jurors unknown,” proof that the persons were actually known to the jury, when it found the indictment, does not constitute a variance between the proof and the allegations of the indictment, so as to defeat the prosecution. This is in conformity with the decision of this court in Dove’s case, 2 Virg. Ca. 26. where the court decided, that an indictment for retailing spirits need not name the person to whom the liquor was sold. The insertion therefore, of the words “ to persons to the jurors unknown” must be taken as surplusage.

The offence of retailing spirits, is distinguishable from that class of offences, where the act constituting the offence is an injury to a third person, such as murder, larceny &c. in which the name of the injured party ought to be stated, when known. The reason of that rule does not apply to that class of offences, to which retailing spirits without a license belongs ; offences in which the act constituting the offence is not an injury to third persons.

It is to be certified to the circuit superiour court of Harrison, that the judgment of the county court ought to be affirmed.