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Commonwealth of Virginia ) To-wit:
City oiOC ~«lly Xof _Har rison .bur_ g _________ )
.
In the __Cix_ c\4-t _____ Cour t of the
9-~~~t __
of -----~p-~~_i_I!Sh~----·
BE IT REM EMB ERED That __ I)_._W_..E~:rl®..tl._____
, Attor ney for the Comm on1V17-e alth for
;
the sa:id ____ G..o.un..cy ____ of Roc.kingham.. __ ,
and who for the said Comm onwe alth prose cutes
in t his behal f, in his prope r perso n comes into t-h e
said Court on this the r.l.9tb .: ____ day 'of.J:.une
----- ----- --, in the year 19135, and upon the c ompl
aint in writin g, verifi ed by the oath of ___ _
----- ----- ----- ----- ----- ----- ----- -~-- ----- ----- -----
----- ----- ----- ----- ----- -,- ----- --
-again st t he peace and digni ty of the Coinmonwe alth
of Virgi nia . .
And the Atto
..._...
~
ey for the Comm onwe alth afore sa id, who
secut es as afore said, in the
name and by the autho ·ty aforesaid, and upon the
complaint in writI
afore said, furth er gives
the said Court to unde rsta d and be inform ed that
said __________ :__ ____ ----- ----- ~--- ----- I
on the __________ day of ___ ----- ----- ----- -,
in the year 192 __, in the sa· ______________ of
----- ----- ----- ----- --, - did u - ~
ully _________________________ ,__ . ----- ·---
a gai~s t the peace and digni ty of the C
~
--- : -- . ----- -
And t he Attor ney for t he Comm onwe a
afore said, who prose cutes
th e
name and by the autho rity afore said, and upon t R
comp laint in writi ng afore s1aid, furth er ives
the sa id Cour t to under stand and be inform ed that
s ·d ----- ----- ----- ----- ----- ----- ---- _
on the __________ day of _____ .:_ ______________ ,
in the y
192 __ , in the said ______________ o
----- - - ----- ----- - ----, did unlaw fully _________
_: _________ ->..- ----- ----- ---ag ains t the peace
--ttltd digni ty of the Comm onwe alth of
Virgi nia.
--- --- --- ~.e ~• -«.,.__, -----------Attor ney for the Comm onwe alth.
VIRG INIA :-__ C_ity___________ of _Haxr.i.sonbur
g_ ___ ______ , To-w it:
This day
_J.a.s_ .. _JI .. _.lioic.e ______
perso nally appea red befor e mel'..aJili.n_~_M_LtJ!Q,JW
.S
_.No.tar¥--EubJ.1-C-- for the ____ gJ._~~----- u f --~~!
'!_~~_9_{!~~!)~------, Virgi nia, and made
~ - - - -c:c:O!IJ.PJa.lnt and info!_mation 9n oath jhat i_.__l.
,_.__JU1IJ._g1:2j;_~in____________ ...,______ ___________ _
w1thm~twe v mornm ritlr o t 1s
o-.w on e ____ _ __ ay O ___ - ----- ----,
·,
in the _L_.c_oun.ty_______ of ~-~~~l~_g_ham ____
•
arden t ·
still, still cap, worm , tui ferme nter, and other
nd mash and other bstan ces capa!ble of bein sed
in the man-
ent spirit s;
~lai wfu lly posse ss arden t spirit s.
Sworn to this ___ l_~~h~ day of _JJ:Ule________
.
- a -·
----- -~
19153_.
-;i;;_
'
----- --- ~
--
1}_
0 .
�Commonwealth of Virginia ) T
.
City olC~ffllyXof
•t·
)
_Harrisonbur_g_ _______ _ . O·Wl •
In the __Cix.c:µ:Lt _____ Court of the
9-~~P:~1 __
,-
of -----~_9-~!_r_i_I!gh~----·
BE IT REMEMBERED That __ p_._W_..E~:rma:n_____ , Attorney for the Commonw.ealth for
the said ____ C..o.un..ty-___ _ of Rockingham. __ , and who for the said Commonwealt h prosecutes
I
in this !behalf, in his proper perEon comes into the said Court on this the ,.l..9th. ____ day of...I.un.e
----------- - , in the year 19233, and upon the c omplaint in writing, verified by t h e oath of ___ _
pete
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�CHIEF JUSTICE,
PRESTON W. CA M PBE LL
JUSTICES ,
H ENR Y W. H O LT
LO U IS S . EPE S
EDWAR D W. HU D GIN S
HERBERT B . GR E GO RY
G EO R GE L. BRO WN I N G
J OS EPH W. CH INN
SUPR EME COUR T OF APPE ALS
H . H . WAYT,
OF VIRGI NIA
C LER K
STAUN TON
Novem ber 1 , 1933 .
Thi s is to certif y that upon the petit i on of E .
Kling stein,
one of the Justic es of the Suprem e Court of Appea ls ofL. Virgin
ia ,
has allowe d a writ of error and supers edea s to a judgm ent of th
Circu it Court of Rockin gham County pronou nc ed on the 17th ., day e of
July , 1933 , in the cause then t herein pendin g of Commo nwealth of
Virgin ia v . E . L. Kling stein , provid ed the petiti oner , or some
one for him , sha l l enter into bond in the said Clerk ' s Office ,
with good secur ity in the penalt y of Six Hundr ed Dolla
r s ( $ 600 . 00 ) ,
condit ioned as the law direc ts .
Teste ,
To the Clerk of the Circu it Court of Rockin gham County .
��.-
VIRGINIA:
f/n
CCtt:y
Ike
o/ f?/2,,cl,,mond
on
1N e dne s d ay.,tk 14th
E . L . Kl i ng stein,
day,
o/ March ,
1934 .
Plaint if f i n e rror
a g ain st
Commonw ealt h of Vi rg inia ,
Defenda nt in error .
Upon a wr i t of error and s u pe rs e deas to a j udg men t ren d ered b y the Ci r c uit Cour t o f Rock ingham
c oun t y on t h e 17th day o f J u l y , 1 93 3 .
This day carn.e as we ll the p la int i ff i n e r ror , by co unse l , a s t h e
At torney Ge ne r al on b e h alf of t h e Commonwe alth , a nd th e cour t h aving maturel
c ons ide r ed the t r anscript of t h e r e c or d o f t h e judgment afore sa i d a nd t h e
mot ion of the p laint i f f
i n err or
t o d is mi ss t h e pro secu t ion a g a i nst h i m, a nd
being of op i n ion t h a t t h ere s h ould b e n o convint ion in t h i s case , it is t he re fore ad judged a n d or d ered that t b e s a i d judgm e n t b e re ve rsed a n d a nnu l le d ,
t h e v e rdi ct of t he jury set a s i d e , a nd t h e cas e i s r ema nde d to the s a i d
circu i t
court with direc t ion
to d is miss t h e p rose c ution .
~hi ch i s ord ere d to b e f orth wi t h c e rti f i e d t o t h e said c i rc uit court.
A co p y ,
T este :
Cler k
{_
/
��To Honorable D.
Commonweal t h ' s
w.
Earman ,
ttorney for Rockingham County , s t at e of
Vi r ginia .
T E r OTICE :
That on the
day of July , 1933 , the
under signed will apply to t he Clerk of the Circuit Court
of Rock ingham Count y f or a transc r i p t of t he record in
t he case of Commonwealth v s . E. L. Uingstein f or t he
purp ose of su bmitting sa i d transcript to t he Supreme Court
of Appeals
with a petiti on for a wr it
of error
Court ren dered in sai d case
-
on the 17 th day of July , 1933 .
Dat e d t hi s ,2..1,/ day of
uly , 1933 .
�.,
�This is to certi fy t hat t he Attorney for t he
Commonwealth has had reasonable notice of t h e ti me and
place of the presentati on and signing of t h e
6 -
Certifica tes of Exc eption in this c ase as r equired by law .
Gi ven under my hand and s eal t h is ;1 b/J-r. day o f
July , 1933-.
��To the Honorable H.
w.
Bertram ,
Judge of the Circuit Court of Rocki ngham County , Virgi nia
. ,.~
i s to c er tify that I have had r easonab l e
noti c e; -f t h;~ ii.me and place t hat t h e Certifi c a t es of
Exception in t he case of .Commonwealth vs . E. L. Klingstein
shall be tendered and presented to you for your signature .
Given under my hand this
i2,6 day of July , 1933 .
��In the Name of the Commonwe alth of Virginia:
To the Sheriff of Rockingham County, Greeting:
You are hereby commanded to summon .... ... ... .... ... .. ........ .... .... .......... ..... .............
: : :::::: : :::::: : : ::::::::: :: : : ~ ~
to appear before the Judge of the C!.:J1t Court of
at 9 :30 o'clock., a. m., on the/J ~ ... . ...
to
t'.,ti:y•nd th, fruth to ,-:J. b!J,.of th,
who stands charge~
'.o~~i7a7: County, at the Court House thereof,
~·
19 ...~ .,-ff}-
~
:: :.
indicted for a ~misde-mea·ftor.
And this.... ..... .. ... ......... . .... .. . .. shall not omit under penalty of £100.
there this Writ.
,~.<.
And haw then and
Witness, J. ROBERT SWITZER, Clerk of our s~~urt, at the Court House, the ..
day of .. ...
19 .&., and in the 15 .~
ear of the Commonweal!h .
THE SE N.VICE PRESS, HARRISONBURG, VA,
/ £.~
~.... ,Clerk
.. . .... ... .. . ....
No. 457
��In the Name of the Commonwealth of Virginia:
You are hereby commanded to
;~J t,he Y!:Jtiff, of R°<ikingham C
eeting:
summon ........ Q.~
. ;>f.f..-...~....& .... .-······· .... ~
~ /2 :e lf~; ' 2 7 ~ ~
~~ ·a .; (..~:: . . . ._···.·. . ...· · : ·:·:·:··:·:·::·: :.:::::: ·:
(1.;f ';;(~
-1
Court House thereof,
19
.ff~
who stands chargedJ :
ithI i d- indicted
·
for a f ~ misde.nieanor-.
And this .... .. .. . .
.
... ....... .. .shall not omit under penalty of £ 100.
And have then and
~
there this Writ.
~~% ~ WIT ~ , Clerk of our said C urt, at the Court House, the
d,y of
=;;r ,. t--:[,,.J
THE SERVI CE PRESS , HARRISONB URG, VA,
/ 'f1:_........
m th,"~ ~ . CIMk
No. 457
,
��SUPREME COURT OF APPEALS
RICH MONO , VIRGINI A
Clerk , Circuit Cour t of Rock ingham County
Harrisonbu r g , Virg inia
�-- -.._
___
�CERT IFI CATE NO. 1.
The f ollowing evidence on behalf of the Commomealth and on beha f
of the defendant, respectively, as hereinafter denoted, 1s all o
the evidence introduced on the trial of this case:-
IN THE CIRCUIT COURT OF ROCKINGHAM COUNTY, YIRGiliIA:
COMMONWEALTH OF VIRGINIA
v.
E. L. KLINGSTEIN
Before Honorable H.
w.
Bertram and a jury.
July ~7th, 1933.
Appearances:-
For the Connnonwealth: D. Wampler Earman, Esq.,
For the Defendant:
-
,
E. D. Ott, Esq.,
s. D. Timberlake, Jr., Esq.
�1.
�CERT IFICATE NO . 2 .
After the evidenc e of the Commonwealth was conclud ed,
t he d efendan t moved the Court to strike out said eviden ce upon
the f ollowin g ground s:
{l)
Becaus e it appear s that the bevera ge which the de
fendan t is charged with having in his posses sion does not contai
more than 3.Z per cent. alcoho l by weight , and a bevera ge which
contain s not more than such percen tage of alcoho l has been declared by Congre ss in the exerci se of its paramo unt author ity to
be non-in toxicat ing, and it is not compet ent, trerefo re, for the
State of Vir ~inia to d eclare such beverag e to be intoxic ating;
(2)
Becaus e the inclusi on of a beverag e such as was
found in the posses sion of the defend ant in this case, within the
defini tion of "arden t spir its" contain ed i n the prohib ition law
of this State, commo nif, known as "The Layman Act" and under whic
the inform ation 1n this case is filed, was improp er and illega l
sinc e the Congre ss has define d a beverag e of suc h charac ter and
alcoho lic conten t as non-in toxicat ing and no non-int oxicat ing
liquor can be proper ly classi fied and defined as ardent spirits ;
(3)
Becaus e the defend ant, as a citizen of the United
States , was lawful l y in pmsses sion of the liquor describ ed in th
inform ation in this case, and shown by the eviden ce to have been
rourd in his posses sion and, therefo re, cannot be punishe d for
having such bevera ge in his posses sion.
��{4)
Because trhe prohibition law, commonly known as
"The La-yman Act,• under which the information in this case was
filed is unconstitutio nal in that it contravenes the provisions
of the Constitution of the Unibed States an:i particularly Articl
6, the Fourteenth Amendment and the Eighteenth Amendment;
(5)
Because the prohibision law of tl:e State of Yir-
ginia, commonly called "The Layman Act" under which the inf'oraa-
tion in this case was filed, is unconstitutio nal end void, because it contravenes the provisions of the Constitution of the
state of Virginia in that the Act is broader than its title, a rrl
in that the fines prescribed by said Act are diverted from the
purpose to which the Constititon of the State of Virginia re quires them to be applied.
{6)
Because the evidence in this case fails to show
that the beverage found in the possess ion of tl:e defendant was
not legally acquired by him".
The Court denied this motion and the Defendant, there
upon, excepted.
��CERTI FICATE NO. 3o
At t:00 conclusion of all of the evidence 1n the case,
the defendant again moved the Court to strike out the evidence
of the Commonwealth upon the identical ground s stated in
connection with the motion to strike out the Commonwealth 's Evidence made when the Commonwealth rested its case, but the Court
overruled said motion aid the defendant thereupon excepted.
��CERTIFIC TE NO . 4
Duri n
the d.irect e,x amination of the defendant, t he following
question was asked him :
Foll owing the 9onver s a tion whi ch you had with the attorney t J
whom you have referred , did you discuss the question ofyou r desire to
have the beer with any other officials of the t own?
The Commonwealth ' s Attorney thereupon objected to any answer to
said question and the Court sustained the mbj ection and refus ed to
permit the witnes s to answer , t o which a ction of the Cour t t he defendant excepted upon the
rounds that the evidence is competent as s how-
in g or tending to show t he defend.ant ' s good f a ith and as to whethe r or
not his violation of t he law , if any was made , was intentional or inadvertent .
If the witness had been permitted to answer , he would have testified as follows :
TT
•
Yes , sir , with four members of the council .
Ye s , sir , I
t alked to four members of the counoil and. to ld them as the United States
had le galiz ed 3 . 2 beer t hat I did n ot see why the council d i d not ge t
together and L."e t some revenue out of it for t he Cit y.
We were discuss -
ing finances and automobile licenses and I told then I thought it w uld
be perfectly legal; that they could obtain this revenue by lic ensing
beer in Harrisonburg because t he United States had pas sed t he bill .
Q.
•
•
Who were the members of the eouncil?
[r .
Slater , Mr . Conrad, ]/Ir . Thomas and :Mr . Masters •
Do you know whether a:n.y of these members , f ollo wi ng t his
conversation , did take the ma tter up with the city attorney?
•
Yes , sir ,
[r .
Thomas wrot e the city attorney a let t er and a sk-
ed his opinion in regar d to the licensing of beer in Harrisonburg and
Mr . Thomas told me th e city att orney said that they would ha ve to talce
the matter up in c-ounc il meeting and the Mayor was not in fa vor of t aking the ma t ter up .
��Q/
Did all of this take place before you got the b er
from Mr. Soper?
A.
Yes, sir, You mean my conversation w 1th the cou c1J
l.
Yes, sir, before or after?
A.
A.ft er .
Q.
You g ot the beer .following your advi ce .from the
attorney to whom you have referred?
A.
Yes, sir.
�r
�- - - - -- - - - - - - - - - - - -- - - - - -- - - - - -
.
GERTIFIC .TE NO. 5 .
The following instructions , given at the re quest of the Commonwealth and the defendant , respectivel y , a s rereina fter denoted , a. re
all of t .he instructions gr anted on the tri al of the a: a se :-
I NSTRUCTION NO . 1 .
The jury are instruc t ed that if they believe from the evidence
i n this c a se tha t t he li qu i d c ommonly known a s b eer , c onsi s t ing of
34 bottles found in the kitchen in the restaurant of E . L . IO.ings te in , a n d 240 bottles found in the base ment u n der the :Ba rg ain Place
occ.upied by him , or in either place , e:ontained more than one-half
of on e per centu.m of al c ohol by volume , and that s a id be er was in
the po s session of said E . L. Klingstein , then you will find him
guilty.
The above instructi on given on behalf of the
Commonwealth was objected to by the defendant for t r, e re a sons
and upon the grounds given and. assigned in connection with the
moti on to strike out the evidence of the Commonwealt h and i ts
gi v ing was exce pted to by the defendant .
The foll owing ins t ruct ion was g-1 ven on behalf of
t he defendant.
INSTRUCTION NO .
Tf',A !T.
Th e C'ourt instructs the jury that even though they
ma y believe from the e v idence that the defendant had in his
po s session the be e r mentioned in the information filed in this
case and that said beer eontained more than one - ha lf of one per
c ent of alc ohol , yet if they furth er believe from the evidence
that the defendant did not intend to vi~l a te any of t he
provisions of the prohibiti on law , but that trere was an
��uninte nti onal or inadve rtent viol ation thereo f , then the
jury is instruc ted that they may, in their discre tion ,
omit the jail sentenc e, a nd punish the defend. ant simply
by assess ing a fine agains t him within the limits fixed
by statute .
Judge.
/
��Hilliard Boice - Direct
2
HILLIARD BOICE, a witness for the Connnonwe alth, being
first duly sworn, testified as follows: DIRECT EXAMINATION
By Mr. Earman:-
Q.
You are J. H. Boice, Chief of Police of the City
of Harrisonbu rg?
1933 - -
A.
Yes, s 1r.
Q.
State whether or not you searc
IM:::.,
on June 17th,
~ 1 0 c,C'>,C: 44.!Cp:R1 .w>dr C:ope,:,
of a search
warran~ s~aENl the restauran t of E. L. Kl i ngstein situated on
the east side of South Main Street in this City?
A.
Yes, sir.
Q.
Q.
State what, if anything, you fourrl when you made
that search in the way of ardent spirits?
A.
We found ten bottles
or beer
in the ice box and
there were twenty~fo ur bottles sitting right beside it and we
found ten cases in an adjoining room under the "Bargain Place".
Q.
Did the defendant state to you whose beer it was
A.
He was not there at the time.
Q.
Did he, later?
A.
Yes, sir, he called up about nine-thir ty that
Q.
What did he say?
A.
Said the beer was his and for us not to destroy
evening.
it.
�r ..
�Hilliard Boice - Direct
How did you gain entrance to the basement under
Q.
the "Bargain Stare" building?
We had a search warrant for it and we went in th
A.
back way and the ware room was locked and we took off tm hinges
and opened the door that way.
Q.
After this beer had been found -- was any one
A.
Mr. Fawley and Mr. Lawson were with me.
Q.
What did you do with the beer?
A.
Loaded it in a police car an:i took it to the jai
Q.
Where was it put in the jail?
with you?
A.
)
In a cell on the lower fioor.
Q.
Who was with you when it wasput in there?
A.
Mr. Early, Mr. Leake; the Sheriff was there and
Mr. Morrison.
Q.
Has any of that beer been removed, do you know?
A.
Two bottles were taken out to ttte State Chemist
at the State Teachers' qollege?
a.
Were you present when it was ranoved?
A.
No, sir, I sent Mr. Early to get it.
MR. TIMBERLAKE:
No cross examination.
WITNESS LEAVES THE STAND.
-o-
c.
R. FAWLEY, another witness for the Commonwealth, be-
ing first duly sworn, testified as follows:DIBECT EXAMINATION
By Mr. Earman:
Q.
You and Mr. Boice made this search of E. L.
3
��c.
R. Fawley - Direct
Klingstei n's Restauran t on June 17th?
A.
Yes, sir.
Q.
What dispositio n was made of the beer - - 1s it
true tlmt tm beer was found as Mr. Boice stated?
A.
Yes, sir.
Q.
What dispositio n was made of the beer?
A.
Moved it to the jail and locked it up in one of
the old death cells.
Q.
Who kept the key?
A.
I did.
Q.
Did you deliver to W.
c.
Early a few days ago two
bottles of that beer?
A.
Yes, sir.
Q.
I hand you two empty bottles labeled "Yuengling • s
Winner Beer" and will ask you
- - - -
MR. TIMBERLAKE:
In order to save time and preve
the unnecessa ry taking of evidence, it 1s stipulated that the two
bottles of beer which were analyzed were two bottles taken .from t
beer .foum in the possessio n
or
the defendant , one of said bottles
having been taken from um.er the adjoining building and the other
taken from the beer found in the restauran t.
By Mr. Earman: -
Q.
You delivered the bottles to Mr. Early?
A.
Yes, sir.
MR. TIMB:ERLAKE:
No cross examinati on.
WITNESS LEAVES THE STAND.
�-:
�Dr.H.
o.
Pickett - Direct
5
DR. H. G. PICKETT, another witness for the Commonwe alt
being first duly sworn, testified as follows:-
DIRECT EXAMINATION
By Mr. Earman:-
Q.
This is Dr. H. G. Pickett?
A.
Yes, sir.
Q.
What is your business?
A
Chemist at the State Teachers' College.
•
Q.
What training and experiem e have you had in
A.
Two degrees.
Q.
Did you ana.lyze two specimens of beer deliTered
chemistry?
to you by W. C. Early a few days ago?
When were they delivered
to you?
A.
About three o'clock on Thursday, July 13th.
Q.
What analysis of them did you make? .
A.
Quantitat ive determina tion of the ethyl alcohol
Q.
What did they show?
A.
Both bottles analyzed the same, 2.72- by we~ht
content.
correspon ding to 3.4% by volume.
Q.
Both bottles r•n the same?
A.
Exactly.
Q.
Did you make a very careful analysis of the bee ?
A.
With the - according to the official methods of
agribultu ral chemistry /
MR. TIMBERLAKE:
No cross examinatio n
WITNESS LEAVES THE ST.AND.
�,.
�c.
R. Fawley - Re-Called
E. L. Klingstein - Direct
C. R. FAWLEY, recalled:
By Mr. Earman:-
Q.
Mr. Fawley, the defendant's place of business is
in the City of Harrisonburg, Rockingham County, V1r ginia?
A.
Yes, sir.
WITNE S S LEA VES THE STAND.
AT THIS POINT THE COMMONWEALTH RESTED IN CHIEF.
~ % . ~fn~%MUXX~
lhlD
XU:U5~ KDI%:1Xp:J!%fx:tJl10ro
:tknh li:n.x»:&icflXilbm:•x -
MR. TIMBERLAKE:
We desire to submit a motion t.o the Court:-
NOTE:
The following emo.t:Lone was heard out of the
presence of the jury:
MR. TIMBERLAKE:
we move the Court to strike out the evidence on
behal.f of the Commonvealth in this case upon the .following ground :
( 1)
Because it appears that the beverage which the defendant 1 s
charge d w 1th having in his possession d oes not contain more than
3.2 per cent alcohol by weight, am a beverage which contains not
more than such percentage of alcohol has been declared by Congres ,
in the exercise of its paramount authority, to b e non-intoxicati
and it is not competent, trerefore, .for the State of Virginia to
dec~are such beverage to be intoxicating;
(2)
Because the inclusion of a beverage such as was found in tm
possession of the defendant in this case, within the definition o
"ardent spiritstt contained in the p roh1b1tion law of this State,
commonly known as "The Layman Act" and urner which the informatio
in this case was filed, is improper and illegal sine e the Cong.res
,
��7
E. L. Klingst ein - Direct
has defined a beverage of such charact er and alcohol ic content as
non-into xicating , and no non-into xicating liquor can be properly
classifi ed and defined as ardent spirits;
(3)
Because the defenda nt, as a citizen of tm United ~tates, wa
lawfully in possessi on of the liquor describe d 1n the informa tion
in this case, and s hown by the evidence t o have been found in his
possessi on and, trerefor e, cannot be punished for having such
beverage in his possess ion.
(4)
Because the prohibi tion law, commonly known as nThe Layman
Act", u m. e r which the informa tion in this case wa s filed is unconstitu tional in that it contrave nes the prov lsions of the
Constitu tion of the United states and particu larly Article 5, the
Fourteen th Amendment and the Eightee nth Amendme nt;
(5)
Because the prohibi tion law or the State of Virginia , connnon
ly known as "The Layman Act", under which the informa tion in this
case was filed, is unconst itutiona l and void, because it contravenes the provisio ns of the Constitu tion of the State of Virginia
in th.at the Act is broader tha n i t s title, and in that the fines
prescrib ed by said Act are diverted from the purpose to which the
Constitu tion of the State of Virginia requires them to be applied
(6)
Because the evidence in this case fa i ls to shcm that the bev r-
age found in the possessi on of the defenda nt was not legally acquired by him.
I don't care to go into any exter:ded argumen t.
It is
fundame ntal and element ary that when Congress has the right to do
a thing, it is binding upon all states and the states must act
only within the congres sional legislat ion that has been applied
��e
E. L. Klingstein - D:irect
and we submit, therefore , that the State of Virginia has no right
to prescribe a penalty for the possessio n of a liquid - beer which the Congress of the United States in the exercise of the
authority conferred upon it by the Eighteent h .Amendment has now
said is non-intox icating and also which a citizen of the United
States can legally have in his possessio n.
It is no more compete t
for the State of Virginia to say that a liquid containing one-hal
of one per cent. is intoxicati ng than it would be that one contai ing four per cent. is not intozicati ng.
Does the State of Virgin a
undertake to say that a liquid - - if it should say that a liquid
containing four per cent. is not intoxicat i~, it would be met
at once by the fact that the limit is 3.2 per cent and so, for th
same reason, if the State of Virginia undertake s to class as arde t
spirits that which the Congress, in the exertise of its paramount
authority has said is non-intox icating, then the State must give
way to it :bmnediatel y.
A matter that is now un:ler considera tion
is that the Layman Act makes certain provision s for the application of fines which were directed to be turned over to the Liters y
Fund which has not been done and the state cannot legally levy a
fine dedicated to a certain purpose in this ease against this derendant charged with the violation of it inasmuch as a dedieatio n
of that fine is, ,mquestio nably, unconstit utional ;in that Act
it must do certain things which have not been done and this dedication •s likewise unconstit utional, null and void.
THE COURT:
The motion will be overruled .
MR. TIMBERLAKE: Note our exception .
��E. L. Klingstein - Direct
NOTE:
The fo l lowing evidence was t aken in the presence
or the jury.
The defendant , to maintain the issue on his pa rt , introduced the followin f" evidence: -
E. L. KLINGSTEIN, the defendant, called in his own beha f,
being first duly sworn, testified as fo llows:'.'"
DIRECT EXAMINATION
By Mr. Timberlake:-
Q.
This is Captain E. L. Klingstein?
A.
Yes, sir.
Q.
You are the defendant in this case?
A.
Yes, sir.
Q.
Where
A.
Harrisonburg .
Q.
How
A.
~or the past twelve years.
do
you live?
long have you lived here?
I was born here and
lived here for about ten years and then left.
Q.
What is your business?
A.
Restaurant.
Q.
You conduct the restaurant known as "Friddle's"?
A.
Yes,
Q.
Do
s 1r.
you have a license to sell soft drinks under
the laws of thi s sta t e?
A.
Yes,
Q.
Entitled to keep, store and sell soft drinks?
A.
Yes, sir.
Q.
I mean non-intoxica ting drinks?
A.
Yes, sir.
Q.
You we r e in the army?
A.
I served in France eighteen months.
s 1r.
��E. L. Klingstein - Direct
Q.
10
Get promoted overseas?
A.
Yes, sir.
Q.
What command?
A.
Eighty-ninth Division.
Q.
Wounded in service?
A.
Yes, sir.
Q.
Receive any citations for gallantry?
MR. EJtRMAN :
Object to that •
THE COURT:
Objection sustained.
MR. TIMBERLAKE:
We except upon the grounds that
the jury 1s ent1 tled to know the defendant and know bis oc cupat io
and enviromnent and other facts ae connected with his life; and
upon the further ground that the matter which is sought to be inquired into in connection with his service record is particularly
important upon the question of his good faith and intention in
having in his possession the beer mentioned in the information.
By Mr. Timberlake:
Q.
Do you hold any official position with the World
War veterans?
A.
I am State service Off"icer in this section
Q.
Do you hold any position with the Alrerican Legio
A.
Department Sergeant-at-Arms, Grand Chef de Guerr
Forty-and-Eight; Past Commander of the Veterans of Foreign Wars
and Past Commander, American Legion, Sta t e of Virginia.
Q.
It has been testified here that this beer was
found in your possession.
A.
Yes, sir.
Is that correct?
?
�•
,.
�E. L. Kling ~tein - Direc t
Q.
1
Please tell the Court and jury how you happen ed
to have that beer?
A.
We happe ned to have it becaus e a man came throu
here two or three month s ago and asked if we wanted any beer
I told him I did not believ e I wante d any at that time.
am
think at that time that I could use it and then I talked to aver
promi nent attorn ey here and he told me that, in his opinio n, it
was legali zed to have it in your posse ssion at any point in the
Unite d States and the law was passed by Congr ess and having been
in the servic e, I thoug ht that the laws of the Unite d States were
suprem e, and believ ing them and knowin g that it was going on in
differ ent parts of the count ry and lookin g at the newsp apers and
seeing the pictur es of unload ing beer and having beer. I then
immed iately looked into the matte r a:m.d saw that it was being had
at differ ent places in the valley and all over the state and then
this man asked me if I knew of any one who would handle it and
I told him I thoug ht I would take some and he left fifty cases
over in the basem ent next door which was next door to me - to my
place of busin ess and which I don't own and don't rent and don•t
have anyth ing to do with and then variou s people came am got so
of it and I got mine in there and when he came beck in a week or
ten days - he does quite a busin ess throug h the state am he woul
collec t for it.
The thirty -four or thirty seven bottle s in my
ice box was Englis h beer am some of it was near beer and the
other beer was my own. This man does busin ess in Penns ylvani a
and runs a truck throug h here sellin g beer.
I was advise d by th1
fttorn ey that in his opinio n it was perfe ctly legal to sell it or
to have it in my posse ssion.
��E. L. K11ngste1n - Direct
Q.
12
State to the jury, whether or not you had the
talk with this attorney before you got the beer?
A.
and he
Yes, sir, bef'ore I got the beer I talked to him
old me that 1n his opinion it was legal; that he had the
dupe that he thought it was all right to sell the beer and have
it in my possession.
Q.
A.
Q.
What was the man• s name that you speak ot?
Soper.
As I understand you, the man by the name of Sope
from Penns ylvania was trucking beer in here?
A.
Yes, sir.
Q.
Making deliveries of beer here?
A.
Yes, sir .
Q.
He stored this beer in thebasement of the build-
ing adjoining. ·
A.
Yes, sir.
Q.
Upon the understanding that any
or
his customers
could come there and get it and he made settlement when he came
back the next time?
A.
Yes, sir.
Q.
The beer that was found in your ice box was some
that you had gotten from that basement?
A.
Yes, sir.
Q.
Did you own the other beer in the basement?
A.
No, sir.
��E. L. Kling stein - Direc t
Q.
Follo wing the conv ersat ion which you had with
the attor ney to whom you refer red, did vc,u discu ss the quest
ion
of your desir e to have the beer with any other offic ials of
the
town?
A.
Yes, sir, with four members of the couns el.
MR. EARMAN:
I objec t to that, if your Hono r pleas e.
THE COURT:
Objec tion susta ined.
At this point , couns el and the witne ss retir ed
to the Judge • s chamb er in order that this evide me may be put
in
NOTE:
on the above quest ion befor e the Cour t.
IN CHAMBERS
A.
Yes, sir, I talke d to four members of the council and told them that as the Unite d State s had legal ized 3.2
beer that I did not see why the coun cil did no.t get toget her
and
get some reven ue out of it for the City. We were discu ssing
finan ces and autom obile licen ses and I told thEll1 I thoug ht it
would be perfe ctly legal ; that they could obtai n this reven ue
by
licen sing beer in Harri sonbu rg becau se the Unite d State s had
passe d the bill.
Q.
Who were the members of the coun cil?
A.
Mr. Slate r, Mr. Conra d, Mr. Thomas and Mr•
Mast ers.
Q.
Do you know wheth er any of these memb ers, follo ing this conv ersat ion, did take the matte r up with the city
attorn ey?
A.
Yes, sir, Mr. Thomas wrote tm city attor ney a
lette r and asked his opini on in regar d to the licen sing of beer
in Harri sonbu rg and Mr. Thomas told me the city attor ney said
13
��E. L. Klingstein - Direct
14
that they would have to take the matter up in council meeting and
the Mayor was not in favor of taking the matter up.
Q.
Did all of this take place before you got tb3 be r
from Mr. Soper?
You mean my conversation with the
A.
Yes, sir.
Q.
Yes, sir, before or after?
A.
Atter.
Q.
You got the beer following your advice from the
council ?
attorney to whom you have referred?
A.
Yes, sir.
MR. TIMBERLAKE:
We submit that is competent on the
question of good faith.
THE COURT:
The objection is still sustained.
MR. TIMBERLAKE:
We except to the ~etion of the Court i
excluding this evidence for the reason that the evidence is compe
tent as showing or tending to show the defendant's good faith arrl
as to whether or not his violation of the la*, if any was made,
was intentional or inadvertent.
NOTE:
The following evidence was taken in the presence
of the jury.
Q.
As a result of the advice that you had received,
did you honestly entertain the belief that you had a right to
have in your possession this beer?
A.
Yes, sir.
I believed that the law of the land
was supreme in everything, that the United States laws were tb3
supreme laws of the land.
��E. L. Klingstein - Cr.oss t.
Re-Direct
16
CROSS EXAMINATION
By Mr. Earman:Q.
Who was the attorney?
A.
Mr. John T. Harris.
Q.
You say that was before you had possession of
any of the beer that was found on June 17th
A.
I had several conversation s with Mr. Harris, a
couple before and four or five or ten after that time
RE-DIBECT EXAMINATION
By Mr. Timberlake:
Q.
Did you apply to the Attorney for the Commonweal h
who is prosecuting this case as to - did you talk to him about
the advice you had gotten?
A.
I asked him what he thought a bout the matter and
he said he didn't know.
Q.
You did tell him about the advice you received?
A.
Yes, sir.
WITNESS LEAVES THE STAND.
DEFENDANT RESTED IN CHIEF.
MR. TIMBERLAKE:
The defendant at the end of tm testimony renews
the motion to strike out the evidence in this case upon the same
grounds as those stated in connection with the motion made at
the conclusion of the Commonwealth• s evidence.
THE COURT:
Which motion the Court overrules.
MR. TIMBERLAKE
Exception.
TESTE:
This _zt, day of
~
{/
1933.
0/;1»f1
-~
-.~
JUDGE.
��-,
I NSTRUCTION NO.
•
The Cou rt inst ructs t he jury tha t even
thoug h t hey
y- be i eve from the evide nce t hat
t he
defen d.ant had i n his posse ssion t he beer menti oned.
in the infor matio n filed in this car-se and t h t said
beer conta ine d mor e than one - h al f of one per cent of
alco hol , yet if t h e y furth er belie ve from the evide nce
th a t t h e defen da nt did not inten d to viola te a:ny of
the provi sions of t h e proh ibitio n law, but th at there
was an unint entio nal or inadv erten t viol a tion t h ereof ,
t hen the jury i i instr ucted t h at they may , in their
discr etion , omit t h e jail sente nce , and punis h the
defen d.ant simpl y by asses sing a fi ne agt:. i n st hi m wit hi n
the limit s fixed by statu t e e
'
1
�'
�I NSTRUCTION NO. /
--The jury are instruc ted that i f they bel i eve from t he evi dence in t his cas e t ha t the liquid common ly known as beer, cons isting
of 34 b ottles
found i n the kitchen in the restau ran t of E. L. Kling-
stein, and 240 bottle s found in the baseme nt under the Bargain Store,
occup ied by him, or i n either pla c e, contain ed more than one-ha lf of
one ) er centum of alcoho l by volume , an d that said beer was in the
po s session of sa id • L. lingste in, then you will find him guilty .
���/;
II
I
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Rockingham County Prohibition Records: Criminal Cases
Description
An account of the resource
The first series of the Prohibition Records collection consists of all criminal case records associated with cases brought to the <strong>Rockingham County Circuit Court</strong> from 1916-1964. Not every individual was indicted for a criminal offense and many were simply judged as misdemeanors. The cases have been separated and arranged by the last name of the defendant. <br /><br />For more information on the Prohibition collection, visit the "<a href="https://omeka.lib.jmu.edu/erp/findingaids">Finding Aids</a>" tab in the menu above.
Publisher
An entity responsible for making the resource available
Rockingham County Circuit Courthouse
Subject
The topic of the resource
Prohibition--History
Prohibition--Government policy--United States
Prohibition--Virginia--History
Rockingham County (Va.)--History
Rockingham County (Va.)--Genealogy
Creator
An entity primarily responsible for making the resource
Rockingham County Circuit Court
Date
A point or period of time associated with an event in the lifecycle of the resource
1916-1933
Identifier
An unambiguous reference to the resource within a given context
Pro001
Relation
A related resource
<a href="https://omeka.lib.jmu.edu/erp/collections/show/7">Prohibition Records: Liquor Inventory</a><br /><a href="https://omeka.lib.jmu.edu/erp/collections/show/6">Prohibition Records: Affidavits for Ardent Spirits </a>
Is Referenced By
A related resource that references, cites, or otherwise points to the described resource.
<a href="https://omeka.lib.jmu.edu/erp/items/show/4524"> Prohibition Records Finding Aid </a>
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Commonwealth v. E.L. Klingstein
Description
An account of the resource
Misdemeanor possession of 277, 12-ounce bottles of beer (ardent spirits), said beer containing 3.2 alcohol by weight.
Subject
The topic of the resource
Misdemeanor
Guilty
Possession of Ardent Spirits
Supreme Court of Appeals of Virginia
Contributor
An entity responsible for making contributions to the resource
Craig Schaefer, Kayla Heslin, Selena St. Andre
Date
A point or period of time associated with an event in the lifecycle of the resource
1933
Rights
Information about rights held in and over the resource
This work has been identified as being free of known restrictions under copyright law, including all related and neighboring rights. (<a href="https://creativecommons.org/publicdomain/mark/1.0/" target="_blank" rel="noreferrer noopener">https://creativecommons.org/publicdomain/mark/1.0/</a>)
Identifier
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RcPr-box10-032
Format
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PDF
Source
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Rockingham County Circuit Court
Publisher
An entity responsible for making the resource available
JMU Libraries
Klingstein