Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1838-07-26


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Il d IL power Of the Court, ier good cause 10
discharge the jury. anslty PM The prisoner UPON his
NH before jury. II Is, however roarr
whieh cahnot be too cautiously exercised The
prisoner Is entitled 10 BE- tired by the jury e.
iecfcd, tried aud in The FIST instance aad T.
deprive him Of that rgh,. except in of obvious
and strong necessity and propriety. might ORR great
injustice and oppression 10 him, aud endanger the
pure adn inistfation olcnminal Justice.
majority Of the CONT is Of opnion, aud doth adj
visc that 10 tie case before Us. II would not have
been right proper in the court below To ,isehafge
the prisoner taking into consideration the facts aud
circumstances which existed IN this case, asdselosed
by the record.
oomn,oa,rea,tsr. Thomas J. csc.
The drfendan, was indicted in The Circuit Snpe
rior Court OF Law and Chaneers for Wood county,
Tor selling ardent spirits by retail. To be Trunk 1T
the place where sol5. without having license
tAerclor. At the trial the Commonwealth ad1ueed
evidence that the delendNt had sold whiskey by re-
aail at tie place faenioned in The indictment. aud
within twelve months previous 10 the finding Of the
same /; but whether the mhiskes WIS sold 10 be
drunk at tie place, to be carried away by tie
purchaser. dill not appear. The Attorney for fhe
Commonwealth eontendrd, that The words 10 be
dunk at the place where soid,' might be regarded
as sn,pnsage. and the defendant convicted under
the Sd section oil the act OF 7th March, 1851, pm
hhi,inc the sale of ardent spirits. not he drunk At
tie court Instructed the jay, that The defendant
ought not 10 be convicted under lhat indictment,
without Proof satisfying their minds. not only oihe
selling, but that Tie spirits sold 10 be dnuah
in OF at the place here tic were sold. IN
some booth atbonr sail appeGdan contiguous
thereto: 10 which opinion aud Instruction OF the
court, the Attorney for the Commonn ealfh except
ed. The jury fvuad verdict IN The defend
ant, aud the court rendered judgment Of aeqaIt-
tai
Al, IL. A. { HI :
Commonwealth, petitionedtAe court for viii ii CT
ror TO the judgment.
Fry J. delivered The opinion Of the eoufr.-Ae-
cording to TeiIt Y. Commonwealth, afely dec del
in this court tie present is case N "heha vii oil
error may be awarded TO tae Commonwealth
The Attorney General has asaed fer ore . and the
enquiry is what error the record PIES MS
The Indictment alleges ilal tie defendant, will
out having license therefor. according To a8 dI1
sell by retail wire, brandy, @e., 10 be drink tie
place where sold, contrary Ia the torm ulihe statute
IN such made, nc. Il IS evidently founded Oh
the l7ih of the aot passed Mach :, ls3l.-
That The slils were 10 lie dunk II tie place where
sold. is necessary 10 Constitute the olienee within
that section Butlaiag 10 prove tbs, tie Attorney
Tor the Commouwe 5lth con'endtd, that the words de
sarbing that pat OF the offence M ht be rejected
as surpiusagc, and tie dcleudltt convicted ,adr,
the Sd section OF the at aforesaid. The court
below decided otsefaisf, and We thnk, WITH good
reason.
Without deciding what would be good indot-
ment under The 81 section, II Is sufficient 10 sly,
tha, The oilences described BY the Cd and I7Ih see
tons wholly different. Usdef Tie 18th section.
ordioary lleease and certificate required IN
der the 81, feta merchants License and cert Ii
cate Under the Eth, the sllils mus he sold 10 bt
drunk nj the Place OF sale; under lie 81 noi to be
drunk AT such place. uaaei the Eth the Inc Is
50 dollars; while that auler The 81, Is tniee tie tax
upon retail erohaut's license Tor he time
The Offences beng being thus different, 10 allow