Peninsula enterprise. [volume] (Accomac, Va.) 1881-1965, 1888-04-14

and convicted in the cnunty conrt Of
Accomac county for selling intoxicating
liquors and sentenced to Imprisonment
in jail for thirty days, and to pay fine
of one hundred dollars. This judgment
having been affirmed by The clrcui.
court of the SAID county. the case on a
writ of error was brought to this court
The Indictment, to which there was
a demurrer, charges that the defendant
ION the day Of March, 1887. in
the magisterial district of Lee. in The
said county did unlawfully sell into1ica-
ting liquors to one John Johnson
against the peace and dignity of the
Commonwealth"
1t is contendcd for the plaintiff in
error that the Indictment is Defective
first .hecanse it does not charge that the
offence was committed in maCsterial
district which had voted against license;
secondly because it does not charge that
the liquor sold was such as was the sub.
| jet of license under the statute before
the vote on the question Of license was
taken; and thirdly, because it does not
state q time certain at which the liquor
was sold.
Wearo Of opinion that these grounds
of objection are untenaDle. 1t was not
necessary to ailege in the Indictment
that the nagisterial district therein
mentioned had voted against license,
for that was a fact of which the court
would take judicial notice, since the re-
suit of an electionin favor of no license,
wien duly certified and l.i'l before the
cont, as prescribed by the statute, is to
adopt in the magisterial district so vo-
ting the provisions of Il public statute.
Nor was it necessary to allege that the
liquor charged. to have been sold was
anything than merely intoxicating. The
language of tie statute is, that ANY
person who sliall sell any intoxicating
liquors within the limits Of any magis-
terial district voting against license, J"
shall be punished, etc. Acts lSs5-S6 p.
$50, sec. S. The indictment follows the
language of the statute, and no further
averment on that point was necessary.
Commonwealtl1Ys. Bennett los Mass.2I.
And the third and last objection is
met by the provisions Of the statute :.
which enicts that mo Indictment or
other accusation shall be qulshed or
deemed invalid for emitting 10 state,
or ,tatinr imperfectly, the time at
which the offence was committed. when
time is not The ess ence Of the uffence. !"
Acts 1s77-7s. p: 335, secs. Hip.
1t is cunteudetl. however. that the
county court erred in overriding the de-
PENDANTS motion for new trial, and
this position is well taken.
The only witness introduced by the
Commonwealth to prove the sale of Ii
quor by the defendant is John ". john
sun, who testiiies that In March, 1887,
after the adoption II the local option
law for Lee tlistrlct,in Accomac county.
and before the finding Of the indict-
ment he applied to the CLERK of the de-
PENDANT 5 hotel for wliskey, that he was
told by the clerk he had no whislley but
that he could LIT him have some ginger,
whereupon he bought and paid ten cents
for something that was called ginger,
and drank 1t for ginger. 1t was served,
he says. in wh!skey glass, in room, at
the hotel formerly used as Il barroom,
and looked and tasted like whiskey. He
thought it would liaye made him drunk,
if he had drunk enough of it, and that
1t would not have taken more OF the
ginger to make him drunk than OF com
mon whiskey, but he was not prepared
to swear it was intoxicating because he
did not drink enough of it to enable him
to d. so. And fllere was no other evil
t dence upon the Subject.
This being so. it is plain that the evil
ience is not sufficient to support the
verdict. The court cannot hold, in the
absence of proof, that ginger" is in
toxicating;l and here the evidence fails
to show thai the article bought by the
witness WAS of thai nature. He says he
called for whiskey, but was told they
had none, and though the liquor he
drank, may have looked and tasted life
whiskes, yet he could not swear it was
whiskey. or that it was intoxicating
The circumstances may justly arouse
suspicion against Tile defendant, but
that Is not enough. In criminal case.
the defendant is entitled to an acquit-
tai, unless his guilt is established be-
yond a reasonable doubt; and the YER
dict in the present case cannot be sus-
tanned consistently with the rule.
Moreover,tlle evidence does not show
that the transaction occurred either in
Lee magisterial 'llstrict,or at any other
place in Accomae county. and that it
did is mere matter of inference, The
witness Johnson, testifies that it oc-
CURED at the defendants hotel. but he
does not give the location of the hotel
nor does any other witness who testified
in the case. The witness, Tunnel, testi-
ies that he is commissioner of the rev.
enue for district No. 2 of Accomac
county, and that the defendant has a
license to keep house OF entertain
ment, but Il ses not know whether the
room in which the liquor in question