Peninsula Enterprise, April 28, 1888

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Moral -- Alcohol

Petitions are to be circulated shortly for signatures in Lee District, looking to another vote on the local option question. If the required number of signers can be obtained, it is proposed to lay the matter before the Judge by 10th of May and ask for an election about 1st of June.

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Forests -- Barrel factories

Measles of a very malignant type prevail in the upper part of the county. In many sections hardly a household has escaped the disease and in many instances, as heretofore reported in our columns it has proved fatal. In Atlantic District the ranks of the public schools have been decimated to an extent, to compel several of the teachers to close the doors for the session, and the latest advices are that an employee, Mr. John H. Ennis of Fruitland, Md., at Mr. Gordon R. Jones' barrel factory, Hallwood, died on Wednesday, and that several others are critically ill with the disease. For some weeks its ravages among the employees at Jones' factory have been such that the operations have been seriously retarded and doing much of the time work has been suspended altogether.

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Infrastructure -- Commercial - Residential constructionInfrastructure -- Commercial - Race tracksInfrastructure -- Commercial - Real estateInfrastructure -- Commercial - Commercial construction

Belle Haven.

A dwelling for Mr. John B. Willis of this place is nearly completed.

A race track, 1-2 mile in length is being made by Jacob & Doughty, which they say, will be the best on the Shore.

West & Willis have purchased the Trower storehouse, at the sum of $700, and will build an addition 25x30, making it the largest storehouse in the town.

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Weather -- Northeast stormsWeather -- Snow stormsTransportation -- Water - StrandingsSea -- WreckingInfrastructure -- Public - Government : Life-saving serviceInfrastructure -- Commercial - Commercial construction

Chincoteague.

Schooner Samuel H. Haines, which went ashore in the upper part of the bay during the March blizzard, has been gotten off by Capt. John D. Whealton, under a contract with the owner for the sum of $500, at an expense of about $200. The schooner is valued at $6,000 and is only slightly damaged.

A three masted schooner, James Worthall, bound from Boston to Philadelphia, went ashore on Williams shoals, off Chincoteague inlet on last Sunday night. The captain mistook Assateague light for Cape May. She was floated with the assistance of Chincoteague and Wallop's Island Life Saving crews on the following night without damage.

Our townsman, Dr. N. S. Smith, will not move to Stockton as reported. He will occupy shortly a handsome drug store which he is having built here.

The boat of Mr. James Jester, of Ragged Point, laden with groceries purchased in our town, was capsized on his return home, with the loss of all of same except a barrel of flour. A vessel crew near by rescued him from his perilous situation.

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Sea -- Shellfish - Oystering : SeasideSea -- Shellfish - Oystering : Seed

Greenbackville.

The schooner Peter J. Hart sailed on last Tuesday for Chesapeake. She will be freighted on her return with oyster plants for our waters.

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Infrastructure -- Commercial - Insurance companiesInfrastructure -- Commercial - Real estateTourists and sportsmen -- Other recreation - Second homesInfrastructure -- Commercial - Residential construction

Mappsville.

The Mutual Live Stock Association, with headquarters here, having been incorporated by recent act of the Legislature of Va. is now prepared for business. All interested in the Association are invited to meet at this place at 2 p.m., of the first Saturday in May.

Mr. and Mrs. Yate of London, England, are on a visit to Mr. and Mrs. Howe of this village. Mr. Yate having purchased a nice building lot proposes to erect a dwelling thereon and pass the warm seasons with us. Florida is preferred by himself and wife as a winter home.

Rev. Richard Walsh proposes to remain permanently with us, having purchased four lots in this village recently, which he intends to immediately improve.

Elisha Curtis of Manasquan, N. J., has purchased a lot near the village and is making preparations to erect a dwelling thereon. Oliver Baker, George T. Gillespie and E. R. Mason are all preparing lumber for new dwellings in or near this place.

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Fields -- Crops - White potatoes : Diseases and pestsForests -- Barrel factories Infrastructure -- Commercial - Residential constructionInfrastructure -- Commercial - Commercial construction

Nassawadox.

Potatoes in this section are coming up and the bugs are already up.

We have a building boom in prospect. Several handsome dwellings are to be erected here shortly. A large barrel factory has just been completed by the Jones Bros.

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Fields -- Crops - White potatoes : Diseases and pests

Pungoteague.

"Tater" bugs are getting plentiful with us and are waiting for the potatoes to creep through the ground.

Chesapeake Agricultural Association.

Tourists and sportsmen -- Other recreation - FairsFarmers -- Farmers' organizationsFarmers -- Innovation

The Board of Directors of the Chesapeake Agriculture and Experimental Farm Association met at Cape Charles April 26th, and organized by the election of Dr. A. Brockenbrough chairman, and H. L. Upshur secretary. It was ordered that notice be given, that the books of the Association would be open at Eastville court day next, for subscriptions of stock, and on the same day a mass meeting of the people of Accomac and Northampton counties, and others who feel an interest in the subject will be held, and speakers will address the people on the subject.

The organization was further completed by the appointment of the following committees:

On grounds and buildings -- George G. Savage, R. V. Nottingham and J. A. Jarvis.

On premium list -- Capt. O. A. Browne, J. C. P. Kellam and Dr. Frank Fletcher.

On experimental farm -- Capt. O. A. Browne was appointed a committee of one to confer with the authorities at Blacksburg for funds to establish an experimental farm on the grounds, as provided for in the lease from Hon. W. L. Scott.

A committee of influential ladies was also appointed in the various localities on the Eastern Shore, to give their support and aid, a list of whom will be furnished for your next issue by your special correspondent at Cape Charles.

Serious Accident.

Weather -- Northeast stormsWeather -- Snow stormsWatermen -- Personal injuryTransportation -- Water - SailboatsTransportation -- Water - StrandingsProfessionals -- Doctors

While Casey Crockett, a well known resident of Tangier Island, was engaged Wednesday in scraping the main mast of the schooner Annie, which was stranded on the island in the storm last month, the halyards to which he was clinging broke and caused him to fall from the top of the mast to the deck of the vessel, a distance of 52 feet, breaking the bone of his left thigh, bruising his arms and face and inflicting severe internal injuries. He was picked up in an insensible condition and taken in a boat to Onancock that night for surgical treatment. Dr. Charles L. Harmanson set the broken thigh after removing a part of the bone, and the patient is resting well with chances of recovery. The wonder is, that he was not killed outright by such a terrible fall. In coming down he fell right across the iron traveller of the schooner.

SAVAGE VS. COMMONWEALTH.

Moral -- Alcohol

Case No. 2.

This was a prosecution in the county court of Accomac county for unlawfully selling intoxicating liquors in Lee magisterial district, in the said county. The defendant was convicted and sentenced to imprisonment in jail and to pay a fine. And a writ of error to the judgment of the county court having been refused by the judge of the circuit court of the said county, the defendant applied for and obtained a writ of error from one of the judges of this court.

It is contended that the county court erred -- first, in overruling the demurrer in this indictment, and afterwards in overruling the defendant's motion for a new trial on the ground that the verdict was contrary to the law and the evidence.

The indictment, which was found at the March term, 1887 charges that the defendant, "Duffield Savage, on the ____ day of _____ A. D., 188-, and since the first day of May, A. D., 1886, in the magisterial district of Lee, in Accomac county, did unlawfully sell intoxicating liquor to one William J. Barnes, against the peace and dignity of the Commonwealth."

The grounds upon which it is contended that the indictment is defective are -- first, that it does not charge that the offence was committed in a magisterial district which had voted against license; second, that it does not charge that the liquor sold was such as was the subject of license under the statute before the vote on the question of license or no license was taken; third, that it does not state a time certain at which the liquor was sold; fourth, that it does not charge that the liquor was sold either by retail or wholesale or at an ordinary, or at any other place enumerated in the statute; and fifth, because the statute, commonly known as the "local option law," under which the indictment was found, is unconstitutional.

The first three of these propositions are disposed of by what was said in the case of Savage vs. Commonwealth, decided at the present term; and as to the fourth, it is sufficient to say that the indictment follows the language of the statute, which makes it an offence to sell "intoxicating liquors," without reference to the quantity sold, or the place where sold, provided the sale is made in a county, corporation, or magisterial district, which has voted against license. The case of Commonwealth vs. Head, II Gratt, 819, is not in point.

And the fifth objection is equally without merit. The statute provides for submitting the question of liquor license to the qualified voters of the several counties, corporations, and magisterial districts in the State, and, among other things, enacts that if any magisterial district vote "against license for the sale of intoxicating liquors therein, then no license shall be granted to any person in such district for the sale of such liquors; but if such district vote in favor of license then it shall be lawful to sell with license obtained under existing laws," and penalties for a violation of the act are prescribed. Acts 1885-86 p. 258. The case has been submitted without oral argument, and no reasons in support of the objection to the validity of the act are assigned in the petition for the writ of error. We presume, however, it is based on the idea that the act delegates a portion of the legislative power which is vested by the constitution in the general assembly, and is therefore void. But his is a mistaken idea. The act is complete in itself, and merely prescribes conditions upon which the sale of intoxicating liquors may be licensed or prohibited altogether. In other words, it prescribes a police regulation, and leaves it to a popular vote to determine, not whether it shall be lawful or unlawful to sell intoxicating liquors, but whether license shall be granted or not. This undoubtedly, it is as competent for the legislature to do, as to leave it to the county and corporation courts to determine whether or not licenses shall be granted, or to confer upon a municipal corporation the power to regulate the sale of liquors within its own limits, or to adopt other like police regulations for its government. The question has often arisen in the courts of other States, and while the decisions on the subject are not entirely uniform, the great weight of authority is unquestionably in favor of the validity of such statutes. This is the view taken by Judge Cooley, who, in his work on constitutional limitations (at p. 1123 et seq.) discussed the question with his usual clearness and ability. After remarking that the municipal charters refer most questions of local government, including police regulations to the local authorities, who are presumed to be better able to decide for themselves upon the needs and sentiments of their constituents, than the legislature can be, he adds: "the same reasons would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local government than a municipal charter would confer; and the fact that the rule of law on that subject might be different in different localities, according as the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of an undisputed authority."

The question came before the Supreme Judicial court of Massachusetts in the case of the Commonwealth vs. Bennett, 108, Mass. 27, in which the validity of a statute very similar to the one we are now considering was sustained. The court said: "Many successive statutes of the Commonwealth have made the lawfulness of the sales of intoxicating liquors to depend upon licenses from the selectmen of towns or commissioners of counties, and such statutes have been held to be constitutional. 7 D and Ab. 43; Commonwealth vs. Blakington, 24 Pick. 352. It is equally within the power of the legislature to authorize a town by vote of the inhabitants to determine whether the sale of particular kinds of liquors within its limits shall be permitted or prohibited. This subject, although not embraced within the ordinary power to make by-laws and ordinances, falls within the class of police regulations, which may be entrusted by the legislature by express enactment to municipal authority:" citing Commonwealth vs. Turner, 1 Cush. 403; State vs. Noves, 10 Foster, 279; Bancroft vs. Dumas 21 Vt. 456; Tanner vs. Trustees of Albion, 5 Hill 121; State vs. Simmonds 3 Mo. 414, See also Commonwealth vs. Deane, 110 Mass. 357; Commonwealth vs. Fredericks, 119 1d. 199; State vs. Court of Common Pleas of Morris county, 36 N. J. 72; State vs. Wilcox, 42 Conn. 864; Locke's Appeal 72 Pa. St. 491; Groesch vs. State, 42 Ind. 547; Fill vs. State 42 Md. 71; Slinger vs. Henneman, 38 Wis. 504; Ehlinger vs. Bonean, 51 Ill, 94.

Nor are statutes prohibiting the sale of intoxicating liquors repugnant to the constitution of the United States, either on the ground that they impair the obligation of contracts, or deprive a person of his liberty or property without due process of law, or violate the privileges and immunities of citizens of the United States. Such statutes have been invariably held valid by the Supreme court of the United States as police regulations, looking to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals, where they do not conflict with the paramount authority of Congress to regulate commerce with foreign nations and among the several States. Bartemeyer vs. Iowa, 18 Wall. 129; Beer Co., vs. Massachusetts, 97 U. S. 25; Justice vs. Commonwealth, 81 Va., 209, and cases cited.

Whether such a statute is valid, so far as it prohibits the sale of property in existence, and in which the rights of the owner have become vested, at the time of its passage, is a question not presented in the present case, and upon which we express no opinion. It will be time enough to decide it when it arises.

The county court, therefore, did not err in overruling the demurrer to the indictment, but it did err in overruling the motion for a new trial, as a brief review of the evidence will show.

The first witness, William J. Barnes, testifies that "after the passage of the local option law," he called upon Winder and Drummond who were the defendant's clerks at his hotel in Lee magisterial district, in Accomac for ginger, and got it; that he paid ten cents a drink for it, and drank it out of a glass about the size of an ordinary whisky glass, in the room usually known as the barroom; that he took much more of it at a drink than he was accustomed to take of whisky; that he did not remember its color, but it did not have the same taste as whisky; nor could he say whether or not it was intoxicating, because, before drinking it, he had drank whisky, which was given him by the defendant and others. The defendant, he says, was not present when he purchased the ginger, and he does not know whether Winder and Drummond were authorized by the defendant to sell intoxicating liquors or not.

The next witness, Johnson, testifies that since the passage of the local option law he has drunk ginger at the defendant's hotel, and that he never saw any there before the law was passed. He thinks if a man were to drink enough of it, it would intoxicate him, and that a beer glass and a half of it would be sufficient. He ordinarily drank it out of a whisky glass. He does not know, however, whether the ginger he drank was like that drunk by Barnes, nor does he say that it was sold him by the defendant or any other person, he merely says he drank ginger at the defendant's hotel. He does not even say he got it at the defendant's hotel, or that he got it from the defendant or his agent, and non constat that he did. He may have gotten it elsewhere.

The next witness, McCready, testifies that he bought ginger at the defendant's hotel, and is satisfied it was intoxicating. He does not know, however, whether that sold to Barnes was intoxicating or not, nor does he say that what he got was sold him by the defendant or his agent, and for aught he does say, he may have bought it from a stranger, and without the defendant's knowledge. And the testimony of the fourth and last witness on the subject John W. Wessells, is not more satisfactory. He testifies that he was treated by a friend to a drink of ginger at the defendant's hotel, and that the clerk at the hotel waited on them. It looked and tasted, he says, like whisky, and might be considered whisky, but he does not say it was intoxicating. On the contrary, he says expressly that the drink he took had no effect upon him. -- And, like the witness who preceded him, he was unable to say what was the nature or quality of the liquor sold to Barnes. He says the liquor he got tasted like whisky, but Barnes swears that what he got tasted differently, and neither testifies that what he drank was intoxicating.

This evidence, which is all the material evidence for the Commonwealth, is plainly insufficient to warrant the verdict. It neither shows that the liquor sold to Barnes was intoxicating, as the indictment charges, nor that Winder and Drummond, or either of them, were authorized by the accused to sell it, and the mere fact of their employment as clerks at his hotel, is not a fact from which their agency to sell liquor can fairly be inferred. The legal presumption in favor of the innocence of the accused can be rebutted only by proof sufficient to establish his guilt of the offence charged in the indictment beyond a rational doubt, or, in other words, the proof must be sufficiently conclusive to exclude any reasonable supposition of his innocence, and here the evidence for the Commonwealth, giving it full force and credit, and rejecting that for the accused (the evidence, not the facts being certified) is not inconsistent with such an hypothesis. It may create a suspicion but nothing more.

The position of the Commonwealth is, that the accused must be presumed to have sold intoxicating liquors to Barnes because, about the same time, and at the same place, he sold such liquors to other persons. But the latter proposition is not sustained by the evidence of a single witness, so that to find the accused guilty, the fact of his guilt must be inferred from another fact not established in the case. This is contrary to the first principles of our criminal law. In Johnson's case, 29 Gratt, 796, Judge Moncure, in delivering the opinion of the court, said that, "it is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth," and that where the evidence leaves it indifferent which of several hypothesis is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however great the probability may be. See also Pryor vs. Commonwealth, 27 Gratt. 1009, Pruner vs. Commonwealth, 10 Va. Law J. 520, Finchim vs. Commonwealth, 12 1d 168.

Tried by this test, the motion to set aside the verdict in the present case ought to have been granted, and for this error the judgment must be reversed and the case remanded for a new trial.

A Copy.

Teste, GEO. K. TAYLOR, C. C.