Chap. 409.—An ACT to amend and re-enact sections 20, 28 and 46 of chapter 407
of the Acts of the General Assembly of 1924, approved March 20, 1924, as

heretofore amended, which chapter is an act concerning intoxicating liquors.
, [H B 131]

Approved March 31, 1932

1. Be it enacted by the general assembly of Virginia, That sections
twenty, twenty-eight and forty-six of chapter four hundred and seven
of the Acts of the General Assembly of nineteen hundred and twenty-
four, approved March twentieth, nineteen hundred and twenty-four,
as heretofore amended, be amended and re-enacted, and that the said
act be further amended by adding thereto a new section to be num-
bered section six-a, so that the said amended sections and the said new
section shall read as follows: "

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 MOnUIS /pxcept 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 or possessed did
not exceed one quart, and that it be clearly shown that there was no
intent to sell the same, and that a satisfactory explanation be given by
the defendant as to where, when and from whom, if he knows, he ob-
tained such ardent spirits, the punishment shall be by a fine of not less
than fifty dollars nor more than one hundred dollars, or by confine-
ment in jail not less than ten nor more than thirty days, either or both,
in the discretion of the court or jury trying the casef¥/ 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. Whenever, in this act, the vio-
lation of any provisions is declared a felony, the person convicted of
such violation shall be punished by confinement 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 violation of this act, other than
the charge of manufacture or sale of ardent spirits, or the transporta-
tion 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 trying the case, shall suspend the
sentence of any person convicted of any felony or the illegal manufac-
ture, or the sale, of ardent spirits or the transportation thereof in quan-
tities exceeding one gallon, or for any second or subsequent convic-
tion of any offense against the prohibition laws of this State or any
ordinance of a city or town authorized by this act, since the first day of
November, nineteen hundred and sixteen.

The term “conviction” as used in this act is intended to mean the
conviction for any act committed after the sentence of the trial court
whenever the time limit for perfecting an appeal shall have expired, or
the judgment of the lower court shall have been affirmed at the time of
the trial of the second or subsequent offense, provided the offense tried
as a second offense was committed after that for which he was
“convicted.”

The term second or subsequent offense as used in this act is in-
tended to mean second or subsequent offenses committed against this
act after defendant has been convicted of a violation of this act or any
city or town ordinance, or State prohibition law since November first,
nineteen hundred and sixteen. (Acts 1926, p. 417).

Section 20. It shall be unlawful for any person to own or have in
his possession without a permit as provided by this section any still,
still cap, worm, tubs, fermenter, or any of them or any other appliances
connected with a still and used, or mash or other substances capable
of being used in the manufacture of ardent spirits, unless such owner
shall be registered with the commissioner and obtain from him a per-
mit to own such still, which permit shall be kept conspicuously posted
at the place where such still is located. All stills in this State not regis-
tered under a permit as herein required and all mash or other products
used in the operation of such a still are hereby declared contraband
and shall be subject to seizure by any officer charged with the enforce-
ment 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 commissioner and turn over to him all stills, caps,
worms, tubs, fermenters and other appliances to be disposed of as re-
quired 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 conviction.
thereof shall be subject to the same penalties as if personally manu-
facturing the same.

Provided the commissioner shall upon the application of any chem-
ist, 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 to be used contrary to the provisions of this act, which permit may
be revoked for cause; and such commissioner may in his discretion
issue such permit to any druggist, physician or other person permitted
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 pre-
scribed by the commissioner, 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 Commonwealth
shall receive a fee of ten dollars, which shall be taxed against the de-
fendant 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 con-
trary 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 ten 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 for the capture of
any still made of material other than copper, whether or not the op-
erator is arrested or convicted, provided such still has a capacity of
not less than five gallons, said still, whether such still is made of cop-
per 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 respec-
tively shall be paid by the comptroller 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 28. (a) Where any officer charged with the enforcement
of the prohibition laws of this State, shall have reason to believe that
ardent spirits are, contrary to law, in any conveyance of any kind,
either on land or on water (except conveyance owned or operated by a
railroad, express, sleeping or parlor car or steamboat company, other
than barges, tugs or small craft), it shall be the duty of such officer to
search such conveyance, and if ardent spirits be found therein, contrary
to the provisions of this act, he shall seize the same, and shall also
seize and take possession of such conveyance, and the team if it be
drawn by a team, and deliver the same and the ardent spirits so seized,
to the sheriff of the county, or the sergeant of the city in which such
seizure was made, taking his receipt therefor, in duplicate, and the said
conveyance and other property so seized, shall be deemed forfeited to
the Commonwealth.

(b) The officer making such seizure shall also arrest all persons
found in charge of, or occupying such conveyance, and shall forthwith
make report in writing, of such seizure and arrest, to the attorney
general and to the attorney for the Commonwealth for the county or
city in which such seizure and arrest were made, and such attorney for
the Commonwealth shall promptly institute appropriate proceedings
against such persons, for violation of the prohibition laws of this
State.

(c) Ifthe conveyance so seized be a motor vehicle required by the
motor vehicles laws of Virginia, to be registered, the attorney for the
Commonwealth shall forthwith notify the director of the division of
motor vehicles, by letter, of such seizure and the motor number of the
vehicle so seized, who shall promptly certify to such attorney for the
Commonwealth, the name and address of the person in whose name
such vehicle is registered, together with the name and address of any
person holding a lien thereon, and the amount thereof; and said direc-
tor shall also forthwith notify such registered owned and lienor, in
writing, of the reported seizure, and the county or city wherein such
seizure was made.

The certificate of said director, concerning such registration and
lien, shall be received in evidence in any proceeding, either civil or
criminal, under any provision of this act, in which such facts may be
material to the issue involved; provided, however, that any failure of
said director to notify such owner and lienor of said seizure, shall not
hinder or delay any such proceedings.

(d) Within ten days after receiving notice of any such seizure, the
attorney for the Commonwealth shall file in the name of the Common-
wealth, an information against the seized property, in the clerk’s office
of the circuit court of the county, or of the corporation court of the
city wherein said seizure was made; and should the attorney for the
Commonwealth, for any reason, fail to file such information within
said time, the same may, at any time thereafter, be filed by the attorney
general, and the proceedings thereon shall be the same as if it had
been filed by the attorney for the Commonwealth.

Such information shall allege the seizure, and set forth in general
terms, the grounds of forfeiture of the seized property, and shall pray
that the same be condemned and sold and the proceeds disposed of ac-
cording to law, and that all persons concerned or interested, be cited to
appear and show cause why said property should not be condemned
and sold to enforce the forfeiture.

The owner of and all persons in any manner then indebted or liable
for the purchase price, said property and any person having a lien
thereon, if they be known to the attorney who files said information,
shall be made parties defendant thereto, and shall be served with the
notice hereinafter provided for, in the manner provided for in section
6041 and/or section 6063 of the Code of Virginia and the amendments
thereof, at least ten days before the day therein specified for the hear-
ing on said information, if they be residents of this State, and if they
be unknown or nonresidents, they shall be deemed sufficiently served
by publication of said notice once a week for two successive weeks, in
some newspaper published in the county or city wherein said informa-
tion is filed, and if there be no newspaper published in such county or
city, then in some newspaper having general circulation therein.

Upon the filing of the information, the clerk of the court shall
forthwith make out a notice reciting briefly the filing of the informa-
tion, the object thereof, the seizure of the property and a fair descrip-
tion thereof, and citing the owner thereof and any person having a
lien thereon, as set out in said information, and all other persons con-
cerned, to appear on a specified day, of the next term of the court, or
before the judge in vacation to show cause why the seized property
should not be condemned and sold; and said clerk, in addition to hav-
ing such notice served as aforesaid, shall promptly post a copy thereof
at the front door of the courthouse.

(e) If the owner or lienor of the seized property shall desire to
obtain possession thereof before the hearing on the information filed
against the same, such property shall be appraised by three disinter-
ested persons, one to be appointed by such owner, or lienor, if he so
desire, one by the clerk of the court and one by the judge, either in
term time or in vacation, by an order entered of record; and the judge
may appoint a person to serve in all such cases, during his pleasure.
If the owner or lienor shall fail to make an appointment, the clerk
shall appoint two of said appraisers. The persons so appointed, or
any two of them, in the event one should fail to appear, shall promptly
inspect and appraise said property, under oath, at its fair cash value,
and forthwith make return thereof in writing, to the clerk’s office,
upon the return of which, the said owner or lienor may give a bond
payable to the Commonwealth of Virginia, in a penalty of double the
amount of the appraised value of said property, with security to be ap-
proved by the clerk, and conditioned for the performance of the final
judgment of the court, on the trial of said information, and with a fur-
ther condition to the effect that, if upon the hearing on the information,
the judgment of the court be that said property, or such interest and
equity as the owner or lienor may have therein, be forfeited, judgment
may thereupon be entered against the obligors on said bond for the
penalty, without further or other proceedings against them thereon, to
be discharged by the payment of the appraised value of the property
seized and costs, upon which judgment, execution may issue, on which
the clerk shall endorse, “no security to be taken”; upon giving of
which bond, the said property shall be delivered to said owner or
lienor.

(f) Any person claiming to be the owner of such seized property,
or to hold a lien thereon, may appear at any time before final judgment,
and be made a party defendant to the information so filed, which ap-
pearance shall be by answer, under oath, in which shall be clearly set
forth, the nature of such defendants’ claim, whether as owner or as
lienor, and if as owner, the right or title by which he claims to be such
owner, and if lienor, the amount and character of his lien, and the
evidence thereof; and in either case, such owner shall set forth fully,
any reason or cause which such defendant may have to show against
the forfeiture of said property.

(g) If such claimant shall deny that ardent spirits were in such
conveyance at the time of the seizure thereof, contrary to law, or shall
be proven to the satisfaction of the court or jury trying the case that
the amount in such conveyance was less than one quart and was not for
the purpose of sale but was for personal use, and shall demand a trial
by jury, of the issue thus made, the court shall, under proper instruc-
tions, submit the same to a jury of five, to be selected and empanelled
as prescribed by law, and if such jury shall find on said issue, in favor
of such claimant, or if the court, trying such issue without a jury,
shall so find, the judgment of the court shall be to entirely relieve said
property from forfeiture, and the costs shall be taxed against said
claimant.

(h) If, on the other hand, the jury, or the court trying the issue
without a jury, shall find against the claimant, or if it be admitted by
the claimant that said conveyance, at the time of the seizure, contained
ardent spirits, nevertheless, if it shall appear to the satisfaction of the
court that such claimant, if he claim to be the owner, was the actual
bona fide owner of said conveyance at the time of seizure, that he was
ignorant of such illegal use thereof, and that such illegal use was with-
out his connivance or consent, express or implied, and that such inno-
cent owner has perfected his title to the conveyance, if it be a motor
vehicle, prior to its seizure, or within ten days from the time same was
acquired. The court shall relieve said conveyance from forfeiture and
restore it to such innocent owner, upon the payment by him of the
costs as hereinafter provided.

Where it is shown to the satisfaction of the court that the convey-
ance for the forfeiture of which proceedings have been instituted was
stolen from the person in possession, relief shall be granted the owner
or lienor, either or both, and the cost of the proceedings shall be paid
by the Commonwealth as now provided by law.

(1) If any such claimant be a lienor, and if it shall appear to the
satisfaction of the court that the owner of the conveyance has per-
fected his title to the conveyance if it be a motor vehicle, prior to its
seizure, or within ten days from the time same was acquired, and that
such lienor was ignorant of the fact that such conveyance was being
used for illegal purposes, when it was so seized ; that such illegal use was
without such lienor’s connivance or consent, express or implied; that
at the time he acquired said lien, he did not know, and had no reason
to believe or suspect, that the owner of said conveyance had ever been
guilty of, or was suspected of violating any prohibition law, or that
such owner intended to use, or contemplated using, or permitting any
ther person to use such conveyance for any unlawtul purposes, and
that he held a bona fide lien on said property and had perfected the
same in the manner prescribed by law, prior to such seizure (if such
conveyance be an automobile the memorandum of lien on the certificate
of title issued by the director of the division of motor vehicles on said
sutomobile shall make any other recordation of same unnecessary ),
the court shall, by an order entered of record establish said lien, upon
satisfactory proof of the amount thereof; and if, in the same proceed-
ing, it shall be determined that the owner of said seized property was
himself in possession of the same, at the time it was seized, for any
illegal purpose, or that such illegal use was with his knowledge or
consent, the forfeiture hereinbefore in this section declared, shall be-
come final as to any and all interest and equity which the said owner,
or any other person so illegally using the same, may have in such
seized property, which forfeiture shall be entered of record. In which
last mentioned event, if the lien established is equal or more than the
value of the conveyance, such conveyance shall be delivered to the
lienor with payment of costs; if the lien is less than the value of the
conveyance, the lienor may have the said conveyance delivered to him
upon the payment of the difference and costs, should the lienor not
demand delivery as aforesaid, an order shall be made for the sale of
said property by the sheriff of the county, or sergeant of the city, as
the case may be, in the manner prescribed by law, out of the proceeds
of which sale shall be paid, first, the costs as hereinafter specified,
second, the payment of the lien; and the residue, if any, shall go to the
literary fund.

Provided, when relief is granted a lienor under such circumstances
that such relief would not have been granted the owner, judgment shall
be entered in favor of the Commonwealth against the owner for the
full value of the conveyance, with actual cost of the proceedings, and
against all others liable to the lienor except a dealer, who, if he held
the lien, would have been entitled to the relief as an innocent lienor,
for due amount to the lienor the amount recovered to be applied, first,
to the amount then due the lienor, and the residue to the literary fund.

(j) If, however, no valid lien is established against the seized
property, and upon the trial of the information, it shall be determined
that the owner thereof was himself using the same, at the time of the
seizure, for an illegal purpose, or that such illegal use was with his
knowledge or consent, the said property shall be completely forfeited
to the Commonwealth, by an order entered of record, in which event
the attorney for the Commonwealth shall forthwith notify the gov-
ernor of such forfeiture, giving him a fair description of the forfeited
vehicle. The governor shall have the right to have such vehicle in-
spected by such agency as he may appoint for the purpose, and if, in
his judgment the best interest of the State would be served by retain-
ing such vehicle for use in some department of the State government
he may so retain the same and have it applied to such use; and the
costs of the forfeiture proceeding, including the fee of ten dollars tc
the attorney for the Commonwealth and a fee of fifteen dollars to any
one officer, or a fee of twenty-five dollars to any two or more Officers,
making the seizure, shall be paid by the Commonwealth in the manner
provided by law.

If, however, the governor shall not order the use aforesaid of such
vehicle, he shall promptly notify the attorney for the Commonwealth,
and the vehicle shall be sold by the sheriff or sergeant, as the case may
be, and after payment of the costs as above specified, the residue of the
proceeds shall go to the literary fund.

Every sale authorized by this section shall be for cash and no sale
shall be made until after the publication of the time, place and terms
of sale, once a week, for two successive weeks in a newspaper pub-
lished in the county or city wherein the order of sale is entered, and if
no newspaper is published in said county or city, the advertisement as
above required shall be printed hand bills posted at the front door of
the courthouse of the county, or usual place for posting of publications
in a city, and in not less than five public places in the county and for
at least ten days prior to the day of sale.

(k) In the trial of any such information, the proven presence of
ardent spirits in the seized conveyance, shall be prima facie evidence
that the person or persons in charge of same at the time of seizure,
had knowledge of such fact, and it shall be no sufficient ground of de-
fense, that such person or persons so charged with using said convey-
ance in violation of law, had not been convicted of such violation.

(1) The proceeding herein termed “information,” shall be inde-
pendent of any proceeding against the owner of the seized property, or
against any other person, for violation of the prohibition laws.

(m) In every such case, the ardent spirits so seized shall be turned
over to the attorney general.

(n) If the seized property, upon the trial of the information, be
entirely relieved from forfeiture, as provided in paragraph (g), the
tees of the attorney for the Commonwealth and the officer making the
seizure and arrest shall be one-half of the amount specified in para-
graph (j), which fees, and all other costs of such proceeding, shall be
paid by the Commonwealth in the manner provided by law; and if
such seized property be relieved from forfeiture as provided in para-
graph (h), the fees of such officers shall likewise be one-half, which
fees and all other costs of the proceeding, shall be taxed against and
paid by the owner as therein provided.

(0) Whether the interest and equity of the owner be forfeited or
not, if a valid lien be established against the seized property, the fees
of the Commonwealth’s attorney and the officer making the seizure
and arrest shall be five dollars each.

(p) In all cases, the actual expense incident to the custody of the
seized property, and the expense incident to the sale thereof, including
commissions, shall be taxed as costs.

Where two or more officers unite in, and jointly capture the seized
property and make the arrests in this section mentioned, the fees here-
inbefore provided for making such seizure and arrest, shall be equally
divided between them.
Section 46. It shall be the duty of all chiefs of police, police
boards, police justices, special officers, sheriffs, attorneys for the Com-
monwealth, 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 summoned
on behalf of the Commonwealth, shall be entitled to and shall be paid
the same fees as are now allowed by law in cases of felony, except that
in cases where pleas of guilty are entered in cases of misdemeanor be-
fore a justice of the peace the attorney for the Commonwealth shall
receive only five dollars, and except in cases of violations of sections
seventeen and eighteen of this act he shall receive 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. 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, however, on the payment
of costs by the defendant or the prosecutor (other than the Common-
wealth), 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, inclusive 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 provided by law.

For making an arrest for the violation of any of the provisions 0!
this or other prohibition laws of the State, the officer making such ar-
rest, if the defendant is convicted, shall be paid a fee of ten dollars, ex-
cept 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 twen-
ty, where the amount being transported does not exceed one quart and 11
is clearly shown that there was no intent to sell the same and a satis-
factory explanation is given by the defendant as to when, where anc
from whom, if he knows, he obtained such ardent spirits, he shall re
ceive a fee of five dollars, to be taxed as a part of the costs agains
such defendant. If two or more officers unite in making an arres
under sections seventeen and eighteen of this act, and for transporting
less than one quart of ardent spirits as herein stated, the fee in eack
case shall be apportioned among the officers making the arrest, pro
vided, however, that no fees shall be paid to a regular police officer o:
any city in this State who is paid a regular salary as such, for arrest:
under sections seventeen and eighteen of this act.