Hunt v. Commonwealth

¶1after making the foregoing statement, delivered the following opinion of the court.

¶2*821The questions raised by the assignments of error will be disposed of in their order as stated below.

¶3[1] 1. Was there error in the action of the trial court in overruling the demurrer to the first count of the indictment?

¶4This question is ruled by the decison of this court in Pine & Scott v. Commonwealth, 121 Va. 812, 93 S. E. 652, and must be answered in the negative.

¶5[2] 2. Was there error in the action of the trial court in overruling the demurrer to the third count of the indictment?

¶6This count does not charge that the ardent spirits were transported in interstate commerce, and, for the reason assigned in the opinion of this court in Sickel v. Commonwealth, 124 Va. 821, 99 S. E. 678, for the holding therein, this count was good on demurrer. We are of opinion that this count is good on demurrer for other reasons also, which are indicated in discussing question 5 in the opinion below. Hence the question under consideration must be answered in the negative.

¶7[3] 3. Was it error in the trial court to refuse to direct the jury to disregard the question addressed to the witness Hosier on cross-examination of him by the Commonwealth’s attorney, which is set forth in the statement preceding this opinion ?

¶8The question just stated must be answered in the negative.

¶9The veracity of the witness had been directly impeached by the testimony for the Commonwealth in conflict with which this witness had testified with regard to the bottle episode, as set forth in the statement preceding this opinion. There was sufficient'evidence thus presented before the jury to submit the question to them of whether this witness “would swear to anything in this case.” The question addressed to the witness was, in effect, merely whether *822he would himself admit such turpitude. If he had admitted such turpitude such testimony would have been admissible “as it went to lessen the weight of his testimony.” Newhal v. Wadhams, 1 Root (Conn.) 504.

¶10[4] It is true that the general rule is that a witness cannot be impeached by questions with regard to his personal conduct which is not relevant to the case on trial. In such case only evidence of the bad general reputation of the witness for truth and veracity is admissible to impeach his credibility. State v. Hill, 52 W. Va. 296, 43 S. E. 160, at p. 161, and authorities there cited. But “where the question is relevant or material to the matter on trial the witness must answer, however much it disgraces or discredits the character, because the demands of public justice require it.” See the same case last cited, 52 W. Va. at p. 298, 43 S. E. at p. 160. The question under consideration was asked the witness Hosier as a part of the cross-examination of him on the subject of the bottle •episode aforesaid, which was relevant to the case on trial. The testimony for the Commonwealth had shown the intimate friendship and association existing between the witness and the accused and that, if the Commonwealth’s witnesses were to be believed, the witness- had perjured himself as to one subject about which he had testified, and the further enquiry of whether he would admit that he would “swear to anything in the case” was relevant to the case on trial.

¶11The cases of Green v. Commonwealth, 122 Va. 862, 94 S. E. 940; Jessie’s Case, 112 Va. 887, 71 S. E. 612, and Mullen’s Case, 113 Va. 787, 75 S. E. 193, relied on for the accused upon the question under consideration are not at all similar in their facts to the one now before us. In those cases the Comonwealth’s attorney made statements or took positions in argument before the jury which there was no evidence whatever in the case to support. In the-*823case before us the conflict in the testimony above alluded to on the subject of the bottle was ample to have justified an argument before the jury to the same effect as the imputation involved in the question under consideration.

¶12[5, 6] 4. Was there error in the action of the trial court in omitting the language which it italicized in the instruction offered by the accused and in giving the remainder of the instruction as asked, all of which appears from the copy of such instruction and from what is said in regard to it in the statement preceding this opinion?

¶13This question must be answered in the negative.

¶14The instruction as given is certainly as favorable to the accused in its statement upon the subject dealt with as he could ask. We cannot here consider whether it was too favorable to the accused. The omitted language was objectionable because it needlessly elaborated the rule laid down, fully stated by the instruction as given,, by entering upon a statement of the reasons for such rule; which statement was likely to mislead the jury into concluding that the court thereby expressed an opinion that the testimony referred to was in fact “tainted” and was in fact “uncorroborated” in any particular; whereas, it was for the jury to decide whether the testimony in question was “tainted,” and there was evidence in the case corroborating the testimony in question in some particulars.

¶15[7] 5. (a) Is the act of Congress of the United States, approved March 3, 1917 (39 U. S. Stat. 1058-9), (effective July 1, 1917), generally called the “Reed-Jones Amendment.” applicable to the instant case, and if so, (b), is the effect of it such that it has taken away from the State of Virginia the power to furnish a person found guilty of the offense created by the State statute of transporting or bringing into this State from a point without the State ardent spirits, in a quantity in excess of one quart- within a period of thirty days? (Acts 1916, sec. 39, pp. 237-8).

¶16*824The Reed-Jones amendment aforesaid, as far as material, reads as follows:

“ … whosoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce except for scientific, sacramental, medicinal and mechanical purposes, into any State or territory the laws of which State or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished as aforesaid” (a fine of not more than $1,000.00 or imprisonment for not more than six months, or both); “Provided, that nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State: *’* .” U. S. Comp. St. 1918, XL S. Comp. Ann. St. Supp. 1919, § 8739a.

¶17In the case of U. S. v. Dan Hill, decided January 13, 1919, 248 U. S. 420, 39 Sup. Ct. 143, 63 L. Ed. 337, relied on for the accused in the instant case, the indictment charged that Hill having upon his person one quart of intoxicating liquor intended for his personal use as a beverage, did in the State of Kentucky, get on board a certain trolley car being operated by a common carrier “engaged in interstate commerce and by means thereof did cause himself and the said intoxicating liquor, then upon his person, to be carried and transported in interstate commerce into the State of West Virginia,” in violation of the Reed-Jones amendment aforesaid. The indictment also charged that the intoxicating liquor was not ordered, purchased or caused to be transported for scientific, sacramental, medicinal or mechanical purposes. There was a demurrer to and a motion to quash the indictment, which motions were sustained by the trial court. That ruling was reversed by the Supreme Court on the appeal.

¶18The law of West'Virginia in force at the time the Dan Hill Case arose permitted any person to bring into the State liquor in a quantity not in excess of one quart in *825any period of thirty days for personal use, and the question involved was whether the Reed-Jones amendment had the effect of creating a Federal offense of the action of Hill of causing such quantity of liquor to be' transported in interstate commerce into the State for such use notwithstanding that such action of Hill was not an offense under the State law. The Supreme Court held that the Reed-Jones amendment did have such effect and that said action of Hill was a Federal offense under the Federal statute aforesaid.

¶19Inasmuch as the evidence on the trial of the instant case discloses that the accused caused the liquor to be transported by a common carrier engaged in interstate commerce, in that particular the case before us falls directly under the holding of the Dan Hill Case and we must hold that the accused did “cause intoxicating liquors to be transported in interstate commerce,” but it does not follow from that single circumstance that the Federal statute in question is applicable in the instant case.

¶20It will be observed that the indictment in the Dan Hill Case not only charged that the liquor was transported in interstate commerce for the personal use of Hill “as a beverage,” but that it was not transported “for scientific, sacramental, medicinal or mechanical purposes.” The demurrer to the indictment admitted the truth of the latter as well as of the former charges.

¶21In the instant case the following instructions, (not quoted in the statement preceding this opinion) was given to the jury:

(1) “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the accused brought from Washington to Norfok ardent spirits in excess of one quart they should find him guilty and fix his punishment at confinement in jail not less than one month nor more than six months, and by a fine not less *826than $50.00 nor more than $500.00. It is not necessary for the State to show any intent to sell the same.”

¶22It will be seen from a reading of this instruction that it withdrew from the jury all consideration of the question of the purpose or purposes for which the liquor was transported into the State. If it was transported into the State “for scientific, sacramental, medicinal or mechanical purposes” the Reed-Jones amendment, by its express terms, in the body of the act itself, had no application to the case. And not only is there no charge in the indictment in the instant case on that subject, but there is no evidence whatever in the case on such subject. So far as the evidence discloses the liquor in question in the instant case may have been transported into this State for the purposes mentioned and expressly permitted by the Federal statute. No issue or enquiry has been made in the case before us on the subject. If the indictment had contained the charges on such subject of the indictment in the Dan Hill Case, the accused might have been able to introduce evidence on the trial which might have shown that the liquor was transported for some one of the purposes permitted by the Federal statute. Such transportation would not have been an offense under the Federal statute, but, the liquor being in excess of one quart, the transportation was an offense under the Virginia statute.

¶23Hence, we cannot say from the evidence on the trial, and the conviction of the accused of an offense against the State statute, any more than we can on the demurrer to the indictment charging only" an offense against the State statute, that the action of which the accused was guilty constituted an offense under the Federal statute aforesaid. So far as appears from the record before us the Reed-Jones amendment is not applicáble to the case before us.

¶24The first branch, (a), of the question under considera*827tion must, therefore, be answered in the negative. Consequent the second branch,' (b), of such question does not arise in the case and we shall for that reason not deal’ with it here. We do not wish to be understood, however, as intimating in any way what would be our opinion on such question.

¶25[8] 6. What is said above disposes of all the assignments of error save that made to the action of the court below in overruling the demurrer to the second count of the indictment. • It was stated in oral argument before us that that assignment of error was not insisted upon, so that it need not be further mentioned than to say that we are of opinion that it is without merit.

¶26The case will be affirmed.

¶27Affirmed.