State v. Bailey , 75 W. Va. 250 ( 1914 )

MILLER, PRESIDENT:

Indicted in two counts for unlawfully selling, offering and exposing for sale spirituous liquors, and “Bevo”, being a drink of like kind and nature to spirituous liquors, &c., and found guilty as charged, by the verdict of the .jury, and adjudged to pay a fine and be imprisoned in the county jail for the period of four months, defendant has brought error to this court.

Upon the hearing here, the attorney general only has filed a brief, the case being apparently abandoned by plaintiff in error.

Outside of one or two questions presented by the assignments of error, the case is fully covered, in its facts and the legal principles applicable. thereto, by the recent case of State v. Henry, 74 W. Va. 72, 81 S. E. 569, and as we think there is no merit in the other points of error assigned, we are of opinion to affirm the judgment below on the principles of the Henry Case, taking note only of the additional points referred to.

The first of these points is that the court below erred in denying defendant’s motion to require the State to file a bill of particulars, agreeably to the rule of State v. Lewis, 69 W. Va. 472. We do not think the rule of that case applicable to a case like this. As Judge BraNNON says in that case: "The right caiinot in every case be used. It can only be exercised where the law allows a general statement in the pleading, but justice demands further information of the demand or accusation. _ It is a matter of sound, but not arbitrary discretion.” The Lewis Case was one of alleged larceny. While the practice in cases like this admits of general statements, defendant is fully protected against surprise. Long standing practice admits evidence of any unlawful sales within a year prior to the finding of the indictment, but requires the State, on motion, to elect which of the sales proven it will rely on for conviction, and then requires the court to instruct the jury to disregard all other sales. This we think is all defendant in such cases can lawfully require. State v. Chisnell, 36 W. Va. 659, and cases cited; State v. Calhoun, 67 W. Va. 666; State v. Davis, 68 W. Va. 184. Moreover, a recent Virginia case, agreeably to general principles of practice, holds that the judgment of the trial court will not be reversed for refusing to require a bill of particulars unless plainly erroneous. Blue Ridge Light, &c. Co. v. Tutwiler, 106 Va. 54, following prior decisions, cited, in the same State.

The other point is that the court below denied defendant’s ■ motion for a continuance. We have examined the record on this motion and can find no abuse of the discretion of the court in such cases.

We, therefore, affirm the judgment.

Affirmed.