Chap. 231.—An ACT to amend and re-enact sections 6, 17, 18, 20, 25, 28 and 46
of chapter 407 of the Acts of Assembly of 1924, in relation to intoxicating
liquors. [S B 236]

Approved March 23, 1926.

1. Beit enacted by the general assembly of Virginia, That sec-
tions six, seventeen, eighteen, twenty, twenty-eight and forty-six,
chapter four hundred and seven of the acts of assembly of nineteen
hundred and twenty-four, entitled ‘‘an act to define ardent spirits and
to prohibit the manufacture, use, sale, offering for sale, transporta-
tion, keeping for sale, and giving away of ardent spirits, or drugs, as
herein defined, except as provided herein; declaring certain ardent
spirits contraband, and prescribing procedure for search therefor and
forfeiture thereof; to prohibit advertisement of such ardent spirits; to
prescribe the jurisdiction for trial and appeals to cases arising under
this act; to prescribe the force and effect of certain evidence and
prosecutions for violation of this act; defining intoxication and who
is a person of intemperate habits within the meaning of this act;
prescribing a penalty for intoxication; prescribing certain. rules of
evidence in certain prosecutions under this act; defining soft drinks,
providing how they may be sold, regulating the sale of toilet, antiseptic
preparations, patent and proprietary medicines and flavoring ex-
tracts; exempting certain counties and cities from certain provisions
of this act and authorizing additional restrictions and limitations be-
yond the provisions of this act as to sale, manufacture or delivery of
ardent spirits in certain counties and cities; to provide for the enforce-
ment of this act and to prescribe penalties for the violation of this act;
to make it an offense to operate on automobile, engine, or other motor
vehicle while intoxicated or under the influence of liquor; and to pre-
scribe penalties therefor; to appropriate out of the treasury of the
State necessary moneys for the enforcement of this act; and to repeal
chapter three hundred and forty-five of acts of assembly, nineteen
hundred and twenty-two, approved March twenty-third, nineteen
hundred and twenty-two, and all other acts or parts of acts in conflict
with this act,’’ be amended and re-enacted so as to read as follows:

Section 6. Penalties—Any person who shall violate any of the
provisions of this act, shall, except as otherwise herein provided, be
deemed guilty of a misdemeanor, and be fined not less than fifty
dollars, nor more than five hundred dollars, and be confined in jail
not less than one nor more than six months, except that the sale of any
ardent spirits, or the transportation thereof in the excess of one gallon
shall be punished by a fine not exceeding five hundred dollars and
confinement in jail not less than three nor more than twelve months,
and except it be clearly shown at the trial that the amount being
transported did not exceed one quart, and that it be clearly shown
that there was no intent to sell the same, and that a satisfactory ex-
planation be given by the defendant as to where, when, and from
whom, if he knows, he obtained such ardent spirits, the punishment
shall be by a fine of not less than fifty dollars nor more than one hun-
dred dollars, or by confinement in jail not less than ten nor more than
thirty days, either or both, in the discretion of the court or jury trying
the case. The penalty for any subsequent offense committed after
the first conviction which is not declared a felony by this act, shall be
a fine of not exceeding five hundred dollars and imprisonment in jail
for not less than three months nor more than twelve months. When-
ever, in this act, the violation of any provisions is declared a felony,
the person convicted of such violation shall be punished by confine-
ment in the penitentiary for not less than one nor more than five years,
or, in the discretion of the jury, by confinement in jail not less than
six months nor more than twelve months, and by a fine not exceeding
five hundred dollars; but where, upon the trial of any charge of viola-
tion of this act, other than the charge of manufacture of sale of ardent
spirits, or the transportation thereof in excess of one quart, or for a
felony it shall appear to the jury trying the case, that there has been
no intentional violation of any provisions thereof, but an unintentional
or inadvertent violation thereof; then the jury may, in their discretion,
omit the jail sentence.

But no court, nor the judge thereof, of this Commonwealth, nor
any justice, mayor or other officer trving the case, shall suspend the
sentence of any person convicted of any felony or the illegal manu-
of such a still are hereby declared contraband and shall be subject to
seizure by any officer charged with the enforcement of the law, which
officer shall destroy all mash and other like products found at such
still and used in the operation thereof and shall forthwith notify the
commissoner and turn over to him all stills, caps, worms, tubs, fer-
menters and other appliances to be disposed of as required by this act.

All persons found at a distillery where ardent spirits are being
manufactured shall be deemed prima facie guilty of manufacturing
the same or aiding and abetting in such manufacture, and upon con-
viction thereof shall be subject to the same penalties as if personally
manufacturing the same.

Provided the commissioner shall upon the application of any
chemist, superintendent of a laboratory or hospital, register such
person, and issue to him a permit to own or to have in his possession
a still, not be used contrary to the provisions of this act, which permit
may be revoked for cause; and such commissioner may in his discre-
tion issue such permit to any druggist, physician or other person per-
mitted by law to practice his profession, or conduct his business in
this State, which permit may be revoked by said commissioner at his
discretion; all permits to be granted subject to rules and regulations
to be prescribed by the comnfissioner, and for which permit the
applicant shall pay a fee of fifty cents.

Whenever any still is seized under the provisions of this act and
the party owning or operating the same is arrested the officer making
the seizure and arrest shall be allowed a fee or reward of fifty dollars
and upon conviction of said person, the attorney for the Common-
wealth shall receive a fee of ten dollars, which shall be taxed against
the defendant and collected as other costs in the manner provided by
law, and the fee or reward of fifty dollars shall be all that the officer
or officers making such seizure shall receive on account of one still
whether one or more persons are convicted of owning the same. And
the fees or rewards herein directed to be paid shall be paid, anything
in the charter of the cities and towns in this Commonwealth to the
contrary notwithstanding.

And if for any reason the said sum of fifty dollars cannot be col-
lected from the defendant after conviction, the said officer making the
seizure and arrest shall be paid the sum of twenty-five dollars to be
paid as now prescribed by law for the payment of costs in criminal
cases. And said officer shall be allowed the sum of ten dollars for the
seizure and confiscation of a copper still, and two dollars and a half
for the capture of any still made of material other than copper,
whether or not the operator is arrested or convicted, provided such
still has a capacity of not less than five gallons, said still, whether such
still is made of copper or other, material, cap and worm to be delivered
to the sheriff of the county, or sergeant of the city, who shall report
same to the judge of the circuit or corporation court of the county or
city in which such seizure and delivery is made, upon whose certificate
said sums respectively shall be paid by the auditor of public accounts
as other criminal expenses are paid, and such sheriff, upon the order
of the judge of his court, shall forthwith dispose of such stills as is
herein provided.
Section 25. Running automobiles, engines, et cetera, while intox-
icated or under the influence of a narcotic drug; how punished.—It
shall be unlawful for any person to drive or run any automobile, car,
truck, engine, or train while under the influence of intoxicants or nar-
cotic drugs. If any person violates the provisions of this section he
shall be guilty of misdemeanor punishable by a fine of not less than
one hundred dollars nor more than one thousand dollars, and im-
prisoned for not less than thirty days nor more than one year, for the
first offense, provided the court in a proper case may suspend the jail
sentence. Any person convicted of a second or subsequent offense
under this section, shall be punishable by a fine of not less than one
hundred dollars and not more than one thousand and by imprisonment
for not less than six months nor more than two years, and no court
shall suspend the sentence. The judgment of conviction for any
offense under this section shall of itself operate to deprive him of his
right to drive such vehicle or conveyance for a period of one year from
the date of such judgment. If any person so convicted shall, during
the year, drive any such vehicle or conveyance he shall be guilty of a
misdemeanor; but nothing in this section shall be construed as con-
flicting with or repealing any ordinance or resolution of any city, town
or county, heretofore or hereafter adopted, which restricts still further
the rights of such persons to drive any such vehicle or conveyance.

Section 28. Search of vehicles in which ardent spirits are being
transported, vehicle to be seized and forfeited, proceedings; disposition
of ardent spirits; arrest of occupants.—When any officer charged with
the enforcement of this law shall have any reason to believe that
ardent spirits are being transported in any wagon, boat, buggy, auto-
mobjle, or other vehicle; whether of like kind or not, contrary to law,
he shall have the right and it shall be his duty to search such wagon,
boat, buggy, automobile, or other vehicle, and to seize any and all
ardent spirits found therein which are being transported contrary to
law. Whenever any ardent spirits which are being illegally trans-
ported, or are being transported for an illegal use, shall be seized by
an officer of the State of Virginia, he shall also take possession of the
vehicle and team, or automobile, boat or any other conveyance, other
than a conveyance owned and used by a railroad, steamboat, or express
company, but this proviso shall not apply to barges, tugs or small
crafts owned and operated by such railroad or steamboat companies
in which such liquor shall be found, and turn the same over to the
sheriff of the county, or sergeant of the city in which such seizure shall
be made, and such vehicle and team, automobile, boat or other con-
veyance shall be forfeited to the Commonwealth; and shall report the
seizure to the attorney for the Commonwealth of the county or city
in which such seizure shall be made, and to the commissioner in writing,
and the attorney for the Commonwealth shall file an information in
the name of the Commonwealth against such vehicle and team, auto-
mobile, boat or other conveyance by the name of general designation.
And if the vehicle seized be an automobile or other vehicle required
to be registered under the motor vehicle laws of the State, the Com-
monwealth’s attorney shall forthwith notify, by letter, the motor
vehicle commissioner the motor number of such vehicle seized, and
the said commissioner, shall immediately transmit to the Common-
wealth’s attorney, the name and address of the person, persons, firm
or corporation in whose name the vehicle is registered, and the said
commissioner shall also notify the owner of said car as shown by the
records of his office of such seizure, but the failure of said motor ve-
hicle commissioner to transmit such notice to the Commonwealth’s
attorney or to notify the owner shall not delay or in any way affect
the proceedings under this section. The information shall allege the
seizure and set forth in general terms the cause and ground of for-
feiture. It shall also pray the property be condemned and sold and
the proceeds be disposed of according to law, and that all persons
concerned in interest be cited to appear and show cause why the said
property should not be condemned and sold to enforce the forfeiture,
which information shall be sworn to by the attorney for the Common-
wealth. Upon the filing of the information the clerk of the court
shall forthwith issue a notice reciting briefly the filing of the informa-
tion, the object thereof, the seizure of the property and citing all
persons concerned in interest to appear on a specified day of the next
term of the court, after the publication of said notice, and show cause
why the prayer of the information for condemnation and sale should
not be granted, a copy of which said notice shall be posted at the front
door of the courthouse by the sheriff of the county or sergeant of the
city and published by him in some newspaper in the county or city
where such seizure is made, at least five days before the return day
of such notice, or if there be no newspaper published in the county or
city, then in some newspaper having general circulation therein, which
said publication shall be sufficient service of notice on all parties con-
cernéd in interest, provided that whenever there is filed with the in-
formation the affidavit of the sheriff, sergeant or other officer in charge
of the property seized that the vehicle, team, automobile, boat or
conveyance seized is of less value than fifty dollars, then the court or
the judge thereof in vacation, may order the immediate sale of such
vehicle, team, automobile, boat, or conveyance on such terms and con-
ditions and hold and dispose of the proceeds as they may seem meet.
Provided, that any person claiming an interest therein may give a
forthcoming bond, in amount, double the value of the property so
seized, conditioned to abide by and perform the final judgment of the
court in the case, and a stipulation in the said bond, that if final judg-
ment in the cause be for the Commonwealth, judgment, without
further proceedings, shall be rendered against the obligors for the
penalty, to be discharged by the payment of the appraised value of
said property seized, and that thereupon process of execution may be
awarded against the obligors, upon which the clerk shall endorse, ‘‘no
security is to be taken.’’ Such appraised value shall be ascertained
by three appraisers, one of whom shall be appointed by the claimant,
if he so desires, another by the clerk, and another by the judge of the
said court, who shall meet forthwith, make the appraisement, under
oath, at least two of said appraisers acting, and return the same in
writing to the clerk of the county in which the seizure was made.
Any person interested may appear and be made a party defendant
and make defense to the information, which must be done by answer
under oath, and the proceedings shall conform as nearly as practicable
to chapter one hundred and thirty-one of the Code of Virginia of
nineteen hundred and nineteen. But, provided, further that any
equity or interest of any person who is in charge of such vehicle and
team, automobile, boat or other conveyance, or who is an occupant
of the same at the time such seizure is made, shall be forfeited by
making such person or persons a party defendant and the possession
of such ardent spirits in such vehicle, dutomobile, boat or other con-
veyance, shall be prima facie evidence that the person in charge knew
such ardent spirits were in such vehicle, automobile, boat or other
conveyance, nor shall it be a ground for defense that such person or
persons by whom said property was used in violation of law has not
been convicted of such violation. The said information shall be in-
dependent of any proceedings against such person or any other for
violation of law. For every information filed under this section there
shall be allowed to the attorney for the Commonwealth a fee of
twenty-five dollars, and to the officer making the seizure and arrest a
fee of twenty-five dollars, which shall be taxed as cost, except as
otherwise provided in this section. All fees herein prescribed, and
costs incident to the seizure and forfeiture of an automobile or other
vehicle under this act, or any other prohibition law of the State, in-
cluding commissions and cost of advertising, shall be deducted out of
the proceeds of the sale of such automobile or other vehicle, and the
net balance turned over to the literary fund. In the event such seized
automobile or other vehicle is not confiscated, the fees to the officer
making such seizure and the attorney for the Commonwealth, filing
such information and conducting the prosecution, shall be one-half
of the amounts herein stated, which fees shall be taxed against the
Commonwealth, and paid in the manner now provided by law.

In’ every case the ardent spirits shall be turned over to the com-
missioner as herein provided.

The officer making the seizure shall also arrest all persons in
charge or occupying such team or vehicle and report all arrests made
to the attorney for the Commonwealth of the county or city in which
such arrests shall be made and to the commissioner in writing, and
the attorney for the Commonwealth shall at once proceed against the
person or persons arrested under the provisions of this act.

Provided, that the forfeiture provided for this section shall not
apply to the transportation in personal baggage of the quantity of
ardent spirits permitted by this act. And provided, further, that
whenever a quantity of ardent spirits is illegally transported in anv
automobile or other vehicle and it shall appear to the satisfaction of
the court from the evidence that the owner or lienor of such vehicle
and team, automobile, boat or other conveyance was ignorant of the
illegal use to which the same was put, and that such illegal use was
without his connivance or consent, express or implied, and that such
lienor had prior to the commission of such offense duly recorded in
the county or corporation in which the debtor resides, the instrument,
creating such lien and that innocent owner has perfected his title to
the vehicle, if the same be an automobile, by proper transfer in the
office of the secretary of the Commonwealth, as provided by law,
then such court shall have the right to relieve such owner or lienor
from forfeiture herein provided; provided, however, that such lienor
or innocent owner shall pay the costs incident to the capture and
custody of such automobile or other vehicle and to the trial of said
cause. :

Whenever any automobile or other vehicle or boat herein men-
tioned is seized under the provisions of this section, the officer making
such seizure shall be allowed a fee or reward of twenty-five dollars,
to be taxed against the automobile or other vehicle or boat seized and
confiscated. In the event the automobile or other vehicle or boat is
not finally confiscated under this section, or if there be a valid lien on
such automobile or other vehicle or boat at the time of the confiscation
such fee shall be ten dollars, and in the event the automobile or ve-
hicle or boat is not finally confiscated under this section, or if there
be a valid lien on such automobile or other vehicle or boat at the time
of the confiscation, the attorney for the Commonwealth shall receive
a fee of ten dollars, to be taxed against the automobile or other vehicle
or boat or defendant, and collected as other costs in the manner pro-
vided by law, except where it has been conclusively shown that such
automobile or other vehicle or boat was stolen from the owner, then
such fee shall be taxed against the Commonwealth and paid in the
manner now provided by law.

Where two or more officers unite in capturing such automobiles
or other vehicle or boat, said fee shall be divided among them equally.

Section 46. Certain officials charged with the enforcement of
provisions of this act; fees.—It shall be the duty of all chiefs of police,
police boards, police justices, special officers, sheriffs, attorneys for the
Commonwealth, deputies, constables, justices of the peace and trial
justices of the counties and cities, and all mayors, sergeants and their
deputies, justices of the peace, trial justices and police of the cities
and towns of this State to enforce all of the provisions of this act, and
the neglect, failure or refusal of such officers so to do shall be deemed
misfeasance in office. |

For official services rendered in connection with violations of this
act all said officers, including police officers of cities and towns, clerks
of court having jurisdiction to try such cases, and witnesses sum-
moned on behalf of the Commonwealth, shall be entitled to and shall
be paid the same fees as are now allowed by law in felony cases, except
that in cases where pleas of guilty are entered in cases of misdemeanor
before a justice of the peace the attorney for the Commonwealth shall
receive only ten dollars, and except in cases of violations of sections
seventeen and eighteen of this act he shall recéive a fee of five dollars,
unless a plea of guilty is entered in such cases, in which case he shall
receive no fee, said fees to be paid as are now or may hereafter be pre-
scribed by law in felony cases. The Commonwealth’s attorney shall
not be required to attend trials for offenses under sections seventeen
and eighteen of this act unless he sees fit to do so. Provided, how-
ever, on the payment of costs by the defendant or the prosecutor
(other than the Commonwealth), in such cases as are misdemeanors
under this act, the clerk of the court shall pay the officers and others
their fees as is provided in section thirty-five hundred and thirteen
of the Code, as amended.

The Commonwealth’s attorney of the county or city in which pre-
liminary hearings are to be had for the violation of this law, shall be
notified by the trial officer a reasonable time before such hearings, in
order that he may attend, and if the Commonwealth’s attorney
attends such trial, a fee of ten dollars shall be taxed by the trial officer
in favor of the attorney for the Commonwealth to be paid by the
defendant; provided, further, that when the defendant pleads guilty
to the charge, the fee of the attorney for the Commonwealth shall be
five dollars whenever he does appear at such preliminary hearing;
and in every case where a conviction is had on the final hearing the
attorney for the Commonwealth shall be allowed a fee of twenty-five
dollars, to be taxed with the costs and paid for by the defendant, in-
clusive of the fee allowed at the preliminary hearing. Where there
is no conviction, or the defendant is insolvent, then the fee to be paid
the attorney for the Commonwealth shall be as in felony cases.

For making an arrest for the violation of any of the provisions of
this or other prohibition laws of the State, the officer making such
arrest, if the defendant is convicted, shall be paid a fee of ten dollars,
except for violation under sections seventeen and eighteen of this act,
he shall only receive a fee of one dollar and a half, and under section
twenty, where the amount. being transported does not exceed one
quart, and it is clearly shown that there was no intent to sell the same,
and a satisfactory explanation is given by the defendant as to when,
where and from whom he obtained such ardent spirits, he shall re-
ceive a fee of five dollars, to be taxed as a part of the costs against such
defendant. If two or more officers unite in making an arrest under
sections seventeen and eighteen of this act, and for transporting less
than one quart of ardent spirits as herein stated, the fee in each case
shall be apportioned among the officers making the arrest, provided,
however, that no fees shall be paid to a regular police officer of any
city in this State who is paid a regular salary as such, for arrests
under sections seventeen and eighteen of this act.