Martin & White v. Commonwealth

Prentis, J., delivered the opinion of the court. The accused were jointly indicted, tried, convicted and sentenced for violation of the prohibition law (Acts 1916, p. 215). The indictment was comprehensive, as is author — 717 — ized under the Virginia statute, and charged them with the possession and transportation of intoxicating liquor in violation of the State law. [1] There is no conflict in the testimony, and the facts shown are that the accused were both employes on a dining car, part of an interstate train, running from New York City to Memphis, Tennessee; that while this train stopped for a few minutes in the city of Roanoke, Virginia, the police officers boarded the train, arrested the accused while they were in the discharge of their duties upon said dining car, before either had left the train or indicated any purpose to do so; and that they were- going through the State of Virginia on that train in the performance of their duties.. Upon a search of the car and of certain parts of it to which the accused had access, a quantity of liquor in excess of the amount then allowed by the Virginia statute was found in their possession. A mere statement of these facts seems sufficient to show, under the decisions of the Supreme Court of the United States, the final arbiter upon all questions involving interstate commerce, that these convictions cannot be sustained. [2] It is claimed for the Commonwealth that while the general rule is that no State law can operate upon the subjects of interstate commerce, various acts of Congress have been adopted which remove the inhibition as to intoxicating liquors transported in interstate commerce, and authorize the enforcement of penalties imposed by State laws for illegal traffic in such liquor. The first of these statutes, generally spoken of as the Wilson act, was passed following the decision in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, in which the court held that ardent spirits, being recognized by the usages of the commercial world as property, and subjects of exchange, barter and traffic, that therefore no State could burden the interstate commerce in that com — 718 — modity, and that, whether prohibited by the State law or not, the right of transportation of intoxicating liquors from one State to another, included the right of the consignee to sell such imported liquor in violation of State law in unbroken packages at the place where the transportation ended; and that it was only after the transportation was completed and the liquor was mingled with and become a part of the general property of the State, that State regulations with reference thereto could be enforced. The Wilson act of August 8, 1890 (26 Stat. L. 313, Ch. 728; Comp. Stat. 1913, sec. 8738), subjected intoxicating liquors transported in interstate commerce to the exercise of the police power of the State, just as if it had been produced in such. State, and whether introduced therein in original packages or otherwise. This act was construed in Wilkerson v. Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, and in Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088. The practical effect of this statute, as construed, was to allow persons co continue to receive intoxicating liquors from other States, notwithstanding the inhibitions of State laws, but prohibited the sale of such liquors, although in the original packages, contrary to such State laws. Then, in further aid of the prohibition laws of the States, the Webb-Kenyon act of March 1, 1913, was passed. (37 Stat. L. 699, ch. 90; Comp. St. 1913, sec. 8739). This act prohibits the transportation of intoxicating liquors from one State into any other State, either in original packages or otherwise, in violation of any law of such State. This statute was reviewed and construed by the Supreme Court of the United States in Adams Express Co. v. Kentucky, 238 U. S. 190, 35 Cup. Ct. 824, 59 L. Ed. 1267, L. R. A. 1916C, 273, Ann. Cas. 1915D, 1167, and in James Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. — 719 — Cas. 1917B, 1845. Mr. Chief Justice White, in the last-named case, said that this act was intended simply to extend that which was done by the Wilson act—“that is to say, its purpose was to prevent the immunity characteristic of all interstate commerce from being used to permit the receipt of liquor through such commerce in States, contrary to their laws, and thus, in effect, afford a means by subterfuge and indirection to set such laws at naught.” These acts provided that State laws should operate upon intoxicating liquors introduced into a State in violation of the State- law, but it was still no violation of State or Federal law to transport such liquors through a State in interstate commerce. Then what was known as the Reed amendment (39 Stat. L. 1069, ch. 162; Comp. Stat. 1918, sec. 8739-a) was adopted March 3, 1917, which imposes a penalty for ordering, purchasing or causing the transportation of intoxicating liquors in interstate commerce (except for scientific, sacramental, medicinal or mechanical purposes) into any State or territory which prohibits the manufacture or sale therein of intoxicating liquor, for beverage purposes. This latter act has been construed by the Supreme Court of the United States in two recent cases, United States v. Dan Hill, 248 U. S. 420, 39 Sup. Ct. 143, 63 L. Ed. 337, where it is decided that although the laws of the State of West Virginia expressly authorize the transportation and use of a limited quantity of liquor for beverage purposes, the transportation of any quantity of liquor into West Virginia in violation of the Reed amendment is punishable under that act; and in the case of United States v. Gudger, 249 U. S. 373, 39 Sup. Ct. 323, 63 L. Ed. 653, where it is decided that the Reed amendment, while it prohibits transportation of intoxicating liquor in interstate commerce “into” any State or territory, the laws of which prohibit the manufacture and sale of intoxicating liquors for beverage pur — 720 — poses, does not prohibit the movement through such a State as a mere incident to the transportation into another State, whether such transportation be by personal carriage or by common carrier. In that case the conceded facts were that the accused was a passenger on a railroad train from Baltimore, Md., to Asheville, N. C., and that while the train was temporarily stopped at the station at Lynchburg, Virginia, he was arrested, his baggage examined, and it was found that he had in his possession seven quarts or more of whiskey; that he had no intention of leaving the train at Lynchburg or any other point in Virginia; and that his sole intention was to carry the liquor with him into the State of North Carolina, to be there used as a beverage. The charge in the indictment that the accused caused to be transported liquor to Lynchburg, in the State of Virginia, had no other foundation than the fact that he was arrested while the train was stopped at the railroad station at Lynchburg, Va., and while he was en route to Asheville, in the State of North Carolina. Upon this state of facts, the Supreme Court of the United States determined that the judgment of the trial court quashing the indictment was clearly right, because of opinion that there is no ground for holding that the prohibition of the statute against transporting liquor in interstate ■ commerce into any State or territory the laws of which State or territory prohibit the manufacture, etc., includes the movement in interstate commerce through such a State to another. This is said by way of conclusion: “No elucidation of the text'is needed to add cogency to this plain meaning, which would, however, be reinforced by the context if there were need to resort to it, since the context makes clear that the- word ‘into,’ as used in the statute, refers to the State of destination, and not to the means by which that end is reached—the movement through one State as a mere incident of transportation to the State into which it is shipped. The sug — 721 — gestión, made in argument that, al+nough the personal carriage of liquor through one State as a means of carrying it beyond into another State violates the statute, it does not necessarily follow that transportation by common carrier through a State for a like purpose would be such violation, because of the more facile opportunity in the one case than in the other for violating the law of the State through which the liquor is carried, is without merit. In last analysis it but invites, not a construction of the statute as enacted, but an enactment by construction of a new and different statute.” What the Congress has done then is to withdraw the protection of the commerce clause of the Constitution from intoxicating liquors which are transported in violation of the laws of the State into such State. None of these acts, however, contains any suggestion that a State law can operate upon intoxicating liquor as the subject of interstate commerce while being transported through such State. The purpose of the Congress is avowed and apparent, and that is to prevent the citizens of one State, under the cover of interstate commerce, from violating the prohibition laws of another State by the introduction of intoxicating liquors therein. There is no suggestion anywhere either in these statutes or decisions that a State can lawfully prohibit the transportation of intoxicating liquor through such State. The legislature of Virginia, in enacting the prohibition law, fully recognized this accepted doctrine, and has never claimed the right to prohibit such transportation through the State. The Virginia act by express language and clear implication prohibits the introduction of the liquor into the State, but does not prohibit its transportation through the State in interstate commerce. [3, 4] Under the facts of this case then, unless suspicion is to be substituted for proof, and the rule that all men are presumed to be innocent until their guilt has been estab — 722 — lished beyond a reasonable doubt is to be abrogated, it is clear that the Commonwealth has failed to establish the guilt of the accused. As employes on an interstate train passing through the State, they were passengers, and there is no indication in the evidence of any use or distribution of the liquor in the State of Virginia. It is not contended that the State laws could operate upon liquor in the possession of a common carrier while being transported through the State, and under the facts of this case these defendants are equally protected by the commerce clause of the Constitution. Under the decision in United States v. Gudger, supra, we are of opinion that the question is not an open one, for the State statute prohibiting the introduction of intoxicating liquor into the State in violation of its laws should receive the same construction as the like prohibition in language of similar import contained in the Reed amendment. At the time this alleged offense was committed, it was not a violation of either Federal or State law to transport intoxicating liquor through the State of Virginia in interstate commerce. [5] It is contended that inasmuch as ardent spirits in excess of one quart were found in the possession of each of the accused, the burden was upon them to prove that they were on an interstate journey, and Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925, is cited to sustain this contention. A sufficient reply to this is that in the Lucehesi Case the Commonwealth proved that the accused had left the train in Richmond, where he resided, and was found in possession, of a quantity of liquor in excess of that allowed by law. His defense was that he was on his way to his room, and that he intended to leavé Richmond on an early train and thus to continue his journey to North Carolina. The Commonwealth, in that case, having established a prima facie case, it was properly said that the burden was upon the accused to prove his defense. In this case, — 723 — however, the Commonwealth had not proved a prima facie case; indeed, in our view of the evidence, it had proved facts from which but one fair inference could be drawn, and that is that the defendants were upon an interstate journey, carrying the liquor with them, and had violated no statute of Virginia. Other questions are discussed in the briefs, but as they have been decided and sufficiently discussed in previous opinions of this court, we think it unnecessary to prolong this opinion by repeating what has been recently said in Pine & Scott v. Commonwealth, 121 Va. 812, 93 S. E. 652; Pettus v. Commonwealth, 123 Va. 806, 96 S. E. 161; Sickel v. Commonwealth, 124 Va. 823, 97 S. E. 783; Burton v. Commonwealth, 122 Va. 847, 94 S. E. 923. Reversed.