Staunton spectator and vindicator. [volume] (Staunton, Va.) 1896-1916, 1899-03-23
An important Decision.

The hastings court was engaged all
Thursday hearing argument on the
demurrer to the indictments now
pending in this court against Wholey
& Murphy and Michael Hounihan for
selling liquor to minors. There were
four indictments against the former
and five against the latter. A. c. Cor
don, the attorney representing Messrs.
Wholey & Murphy and Michael Hou-
nihan demurred to the indictments
and forcibly argued the question be-
fore the court. Carter Braxton, at
torney for the Commonwealth, opposed
with equal yigor the demurrer, and at
the close of the able speeches of these
gentlemen. the judge rendered the fol-
lowing opinion, which is self-explana-
tory:
THE JUDGES OPINION.
The question in my opinion at issue
here hinges upon the answer to the
enquiry: ITO whom does the pro-
noun he refer when it says, he shall
be fined not less than $25, etc'.''
The section of the Code of 1887,
S382S, makes the bar owner responsible
for selling and permitting the sale,
and also renders the person in the en-
ployment of the owner who sells re-
spOnsible and fixes the fine at $40 to
$500, and gives the court power to take
his recognizance in penalty of not less
than $500.
The first amendment was made by
an act passed in 1896. The first change
was to strike out the clause: "Or per-
NIT any one in his employm emit to sell,
etc.,
The next amendment was to in
crease the minimum of the fine from
$40 to $25, and give the court the di-
secretion to confine the party in Jail six
months.
Now, what did this amendment
mean? Plainly to ne it was meant to
do and did do two things. First, it
eleminated the question of permission
from the owner to the employee, and
left the two each to stand On his own
feet. If the bar owner sold, he was
responsible to the law; if the bartender
sold he was responsible to the law.
But presented this question to
the legislative mind, while bar
owners, as rule, are respon-
sible and probably could pay the fine,
bar-tenders, as rule, are not and
could not pay the fine and so in orGer
to make the law little more string
ent we will raise the minimum from
$40 to 1926, and to leave the punish
ment of the offender where the fine
can not be made we will give the court
the power to add imprisonment for a
term, and now they supposed they
had so fixed the law as to reach the
true offender and secure his punish
ment.
The law of 1S97-9S is an amendment
to that of 1896 and it is under the act
of 1898 we are, now proceeding. Let
us see how it changes the act of 1896.
The first change is to leave out the
clause. ''or if any person in his .em-
ployment shall. &C." and in the place
thereof to put ''if any other person
dealing in Intoxicating liquors, &C., ="
and then to make it as broad as could
be it says if any other person mot con-
filming it to dealers) sell, &C., and not
satisfied with this it goes further and
says, "or if any person, directly OF in
procure from dealer in
toxicants, to be sold, given. or fur
nished, sc and deliver or caused to be
delivered the same to such minor, %
and then follows the same penalty,
''he shall be, &c.'
This amendment makes the law as |
broad as it can be, and there can be |
no escape from it when applied to the
In my opinion the Legislature had |
three objects in view:
First, To punish severely this Of
'ence. Witness the increase in the
inc and the added penalty of incarce-
alton.
Second, To render the punishment
certain by taking away from the
offender the doubt as to age, and max
ng him an absolute insurer so to
peak, and abrogating the permission
i the parent or guardian.
sThird, While it thus broadened and
leepened the penalty, it confined it's
peration to the true offender. In the
ight of these views, I am of opinion
he pronoun he in fhe act in the SEN
ence defining the penalty has refer
nee not alone to one but to each and
very class named in the act, and
ach must stand or fall by ITSELF
Under the act of 1896 the two last
cunts 1.-THE second and third in the
allotment would have been bad,
hough they would have been good
nder the code of 1887. Under the act
f 1898 l think the reason still
tronger.
l think the first count good, the
econd and third bad, and the demur-
er as the first must be oyerruled and
5 to the second and third sustained.
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