Opinion.

Com., 88 Va., 900; Gravely v. Com., 86 Va., 402; Gresham v. Ewell, 85 Va., 1.

The indictment in this case was found by a special grand jury, and in Robinson v. Com., supra, it was distinctly held that a special grand jury may be summoned without a writ of venire facias from a list to be furnished by the judge, and it appears from the statement of the judge that such a list was furnished, and that eight of the persons whose names were embraced in said list appeared, and were impannelled and sworn as the grand jury. This disposes of the first and third pleas.

On the first day of the term, as the record shows by necessary implication, the court was opened by the Hon. N. P. Oglesby, the judge of said court, when the orders impannelling the grand jury were entered. It also appears that he opened the court on the second day of the term, and that sometime during that day an order was entered, which order is in the following words, to-wit: "The judge of this court being so situated as to render it improper in his judgment for him to decide or preside at the trial of any case on the docket which have been undisposed of up to the present time of this term of the court, the Hon. R. L. Kirby, judge of Grayson county, thereupon took his seat upon the bench and proceeded to the dispatch of the business on the docket now remaining undisposed of." And it is stated in the record, and nowhere denied, that the orders of the second day, including the adjourning order, was signed by the said R. L. Kirby. Now this is all that is required by the statute, or the decision in Gresham v. Ewell, supra, and this being so, it is a matter of no moment whether Judge Oglesby or Judge Kirby happened to be presiding at the exact punctum temporis when the grand jury came in with this indictment.

The next ground of exception is that the accused was prejudiced by the manner in which the witness, David Cruise, “was allowed to give in his testimony," and by some of the ques

Opinion.

tions which were put to him. But we see nothing in the record which gives countenance to either of these objections. The witness, having testified that he had missed several bushels of corn out of his mill on Monday morning which had been in his mill on the preceding Saturday night, and that there was some Fultz wheat and poplar shavings mixed in said corn, was asked if the corn that he found at the house where the accused lived was the same corn which came out of the mili, answered: "That is my opinion, to the best of my knowledge and belief." He was then asked: "On what facts do you found your belief and knowledge?" to which the witness replied: "Because we found wheat and shavings in the corn that identified themselves-it was Fultz wheat and poplar shavings in the corn at the mill." These questions are not leading, nor is there anything that we can perceive in the witness' mode of testifying.

The next exception is to the refusal of the court to set aside the verdict and grant the prisoner a new trial, but as neither the facts nor evidence is certified, we have nothing from which we can determine this question, but answers of Cruise just referred to go far to identify the corn in the prisoner's house as the corn which was stolen. See Gravely v. Com., 86 Va., 402, where this kind of evidence is commented on by Lewis, P.

The last exception is the writ of venire facias, for the trial jury is not set out in the record, but this is not required. See Spurgeon's Case.

This disposes of the various assignments of error, and the result is that the judgment of the circuit court must be affirmed.

JUDGMENT AFFIRMED.

Syllabus-Statement.

Wytheville.

THOMAS V. COMMONWEALTH.

JUNE 29th, 1893.

1. CRIMINAL PROCEEDINGS-Indictment.—Indictment laying the charges of unlawfully selling different kinds of intoxicating liquors in the disjunctive, is sufficient. Morgan's Case, 7 Gratt., 592.

2. ELECTION UNDER REPEALED STATUTE-Validity.-An election held July 1, 1886, under act of February 26, 1886, was not invalidated by repeal of that act after May 1, 1888, by the adoption of Code, 4202.

3. JUDICIAL COGNIZANCE-Election.-The court will take notice judicially that at an election held under act of February 26, 1886, in the magisterial district wherein the offence is laid, the vote against license prevailed, and no allegation to that effect is necessary in the indictment (Savage's Case, 84 Va., 582); and also that apple brandy is intoxicating.

4. CLERICAL ERROR.-A mistake as to the date of an order entered in the record of the county court in relation to such election will not invalidate the election.

Error to judgment of the judge of the circuit court of Russell county refusing a writ of error to the judgment of the county court of said county, rendered February, 1892, on an indictment for unlawfully selling intoxicating liquors against the plaintiff in error, James Thomas. Opinion states the

case.

J. C. Gent, for plaintiff in error.

Attorney-General R. Taylor Scott, for commonwealth.

LEWIS, P., delivered the opinion of the court.

Opinion.

This was a prosecution in the county court of Russell county against the plaintiff in error for a violation of the local option. law. There was a demurrer to the indictment, which was overruled, whereupon issue was joined on the plea of "not guilty." The jury found the defendant guilty, and assessed a fine against him of $100, and there was judgment accordingly. To this judgment the defendant applied to the judge of the circuit court for a writ of error, which was refused, whereupon, on his petition, a writ of error was awarded by this court.

The indictment charges that the defendant, in October, 1891, "at his dwelling house, in the Lebanon magisterial district of said county, did unlawfully sell intoxicating liquors, wine, ardent spirits, spirituous or malt liquors or mixtures thereof.”

The first ground of demurrer relied upon here is that the indictment is in the disjunctive. But this objection is met by Morgan's Case, 7 Gratt., 592. In that case the indictment was for unlawfully selling rum, wine, brandy or other spirituous liquors, and was demurred to, on the ground that the charges were laid in the disjunctive; but the demurrer was overruled by the trial court, which ruling was affirmed by the appellate court. This case was decided in 1850, and has ever since been followed as authority in Virginia in similar cases.

It is next insisted that the demurrer ought to have been sustained, because "the local option act" of February 26, 1886 (Acts 1885-'86, p. 258), was repealed by section 4202 of the Code, and because the provisions of chapter 25 of the Code, in regard to local option, have never been put in force in Russell county.

We are of opinion that this position also is untenable. Granting that by virtue of the said section the act of February 26, 1886, gave way to the provisions of chapter 25 of the Code, on the same subject, it does not follow that what was done under the said act, prior to the going into effect of the Code, was thereby undone or set aside. So that the result of the election which was held in Russell county on the 1st day of

Opinion.

July, 1886, under the above mentioned act, was not affected by the subsequent adoption of the Code.

It is contended, however, that there is nothing to show that the Lebanon magisterial district voted "against license" at that election. But this was a matter of which the trial court, according to Savage's Case, 84 Va., 582, was bound to take judicial notice, and the question was decided against the defendant; nor is there anything to show that it was erroneously decided. There is, indeed, an order of the county court copied into the record of the present case, upon which the defendant relies, which is as follows, to wit:

"At a court of quarterly session continued and held for Russell county at the court-house thereof on Thursday, the 8th day of June, 1886, E. S. Finney, J. B. Seacatt, and W. R. Akers, commissioners of election for Russell county, this day filed their certificate of the special election held on the 1st day of July, 1886, upon the question of licensing or not licensing the sale of intoxicating liquors in said county, and report a majority of 713 votes against licensing the sale of intoxicating liquors in said county."

This order was evidently entered, not in June, 1886, but after the 1st of July of that year. The mistake is doubtless that of the copyist; for the transaction referred to occurred after the 8th of June; and, besides, we must take judicial notice of the fact that the June term of the county court of Russell county is not a quarterly term. The quarterly terms of that court are, or were when the order in question was entered, the April, July, September, and December terms (Acts 1885'86, p. 570). Moreover, the act of February 26, 1886, required a copy of the certificate of the canvassers of the election returns to be laid before the county court at its next term after any election held under the act, and the presumption is that this requirement of the statute was complied with in the present case.

It is true the order does not state the result of the election