Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-10-28

y IL
supreme Court of Appeals of Virginia.
september 20, 1900.
AN INDICTMENT FOR SELLING;
LIQUOR WITHOUT A LICENSE
MAY CHARGE a SALE TO TWO
PERSONS, AND HAVE A COUNT
FoR SELLING BY RETAIL AND
ONE FOR SELLING LESS THAN A
GALLON.
GMcNT IN SUCH CASE WILL
NOT BE REVERSED BECAUSE
THE SALE WAS TO EACH OF
THE TWO PERSONS AND NOT
TO THEM JOINTLY.
me facts are stated in the opinion of
the court
The court says:
me Facts proved are, that the plain
tiff IN error is n licensed distiller and
as such. sold whiskey to p. I. HUFFMAN
ana II. I. Robinson; that the sale was
not made 10 them Jointly, but sepa-
,ateiy. each buying for himself a gal
ION OF more, which was measured out
ana placed in jugs left i'm the custody
oil the plaintiff in error subject to the
sorder of the purchasers. The sales
were made during the months of Sep
TEMPER. october or November proceed :
ing the trial. and the price was paid at
tne time of the purchase or charged
on running account. Huffman's
Wniskey was put In q jug tagged Up.
l., and was taken away by him I'm
quantities of less than one gallon. or
delivered in quantities OF less than one
gallon on his order. to Robinson who
conveyed and delivered the same TO
HUFFMAN: that Robinson had his gallon
put In n jug which was left in the GUS
toby OF McKeever under substantially
the same circumstances as that which
was sold to Huffman.
Inc errors assigned to this Judgment
are, first, because plaintiff in error is n
licensed distiller. and under the law
had right to sell liquor manufactured
by him in quantities not less than n
gallon, and there is no proof that he
did sell in quantities less than n GAL
lon.
This assignment of error is disposed
OF by Richardson's case, reported in 76
va, loOf. The jury was there instruct
ed that to constitute n sale by the gal
lon there must be a sale and delivery
TO the buyer of an entire gallon; that
contract for gallon. and the deliv-
cry OF the same in parcels at different
times. is n violation or the law. This
instruction was held to he correct. the
court saying in the course of its opin-
ION, that the purpose of the law would
be defeated by the Interpretation that
the distller might contract to sell Il
party gallon OF whislSey and metc it
out TO him in small quantities. say, of
pint or half pint at a time. as he
might call for 1t. Such sales of spirit
uous liquor would be mere shifts to
violate the statute"
The second error assigned is because
the indictment charges the sale OF IL
quor TO two persons jointly. and the
proof was of separate and distinct
sales to each of them.
We are OF opinion that there is no
such variance between the averment
and the proof as would warrant us in
reversing the Judgment. The indict-
ment, it is true. charges q sale to
Huffman and Robinson, and the facts
proved show a separate sale OF liquor
to each of them. The offense charged
against plaintiff in error is the sale of
ardent spirits without first having OBJ
tanned Il license as required by law, in
the first count; and of having sold it
in quantity of less than q gallon, in
the second count. There was no plea
interposed. no objection made to the
Introduction of the evidence, and the
case is before us as upon n demurrer
TO the evidence; and so treated, we
cannot say that the facts proved are
insufficient to support the Judgment,
which is affirmed
Affirmed.