
    *Sledd v. The Commonwealth.
    April Term, 1870, Richmond.
    (Absent, Oiibistian, J.)
    1. Indictment—node of Stating Time of Offence—Unessential,—Since the act, Code, ch. 207, § 11, no mode of stating the time of an offence in an indictment or presentment can vitiate it.
    2. Act of April 19, ’67,  22—Applies to Butcher,—A butcher carrying on his business in the markets of a city, who goes out into a county and buys cattle, sheep or hogs, and butchers the animals and sells the meat at his stall in the market, comes within the provisions of the act of April 19th, 1867, § 22, Sess. Acts 1867, p. 822. in relation to assessment of taxes on licenses, and must take out a license for so buying. §
    3. Verdict—Amend When.—The jury may amend their verdict at any time before they are discharged.
    4. Presentment of Three Counts—Verdict on First Count—Judgment.—There being three counts in a presentment, and the jury having found the defendant guilty on the first count and assessed his fine, and not guilty on the second and third counts, the judgment should be for the Commonwealth on the first count, and for the defendant on the second and third counts.
    5. Same—Same—General Judgment.—In such case there having been a general judgment for the Commonwealth, this court will amend and affirm it.
    At the August term 1867 of the County court of Henrico, the grand jury presented Win. W. Sledd, first, that within two years last past, in said county, he did, without a license authorized by law, unlawfully canvass the said county for the purpose of buying and offering to buy, and did actually buy, certain matter of subsistence for man, to wit: cattle, sheep and hogs, not for his own use or for the use of his family.
    *There was a second and third count in the presentment. The second for buying and selling cattle for profit, and not for feeding and grazing for as long as two months, without a license; and the third was for selling cattle for others on a commission for profit, without a license.
    The defendant appeared and demurred to the presentment and each count thereof; and also pleaded not guilty. But the court overruled the demurrer to the presentment; and the jury, under the instructions of the court, found the defendant guilty under the first count of the presentment, and assessed his fine at ten dollars; and found him not guilty on the second and third counts.
    During the progress of the trial, the defendant took two bills of exception to the rulings of the court. It appeared from the evidence, that Sledd, at various times and places, and among others, at the State scales and dividing pens, near the city of Richmond, and at the end of the Brooke turnpike, five miles from the city, in Henrico county, did buy and offer to buy cattle, sheep and hogs, and at various times within two years, prior to this presentment, and since the passage of the act of assembly concerning the assessment of taxes on licenses, passed February 13th, 1866, and April 19th, 1867, and down to the time of making the presentment; and went to said places for the purpose of buying the live stock of said description, of any and all persons from whom he could buy them, without a license to canvass the county of Henrico under the acts of February 13th, 1866, and April 19th, 1867.
    And it further appeared that Sledd had, for many years carried on the business of a butcher at the markets in the city of Richmond, that he had regularly paid the dues and taxes assessed by the city authorities, consisting of stall rents and other charges; and had paid his internal revenue tax to the United States as and for *a butcher carrying on said employment ; and was a butcher carrying on his business in the said city at the time when he bought and offered to buy live stock as aforesaid in said county for his business as a butcher, and that he slaughtered the same and converted them into butcher’s meat for sale at his stall in the market; and he did not sell them as live stock.
    The head of the Brooke turnpike is on the road leading from the State scales or dividing pens, and is a place of common resort for butchers, hucksters and others, to meet the vendors of live stock, chickens, eggs, butter and other provisions for the market of Richmond. Stock and provisions are commonly, bought and sold at that place, and often on the road between that place and the city.
    When the evidence had been introduced, the attorney for the Commonwealth moved the court to instruct the jury as follows: If the jury shall believe from the evidence, that the defendant, Wm. W. Sledd, at different times during the two years next before this presentment was made, and since the 13th of February 1866, and since the 19th of April 1867, went into different places in the county of Henrico, for the purpose of buying or offering to buy, and did offer to buy, and actually buy, calves, and other cattle, or sheep or hogs, at such times and places, from any persons who had the same for sale, upon the best terms the said Sledd could obtain, and not for his own use or for the use of his family, but to be killed and sold for human food, and that the defendant had no license to canvass said county under the provisions of the act passed the 13th of February 1866, or of the act passed the 19th day of April 1867, then they should find the defendant guilty under the first count of the presentment; even though they should further believe from the evidence, that the defendant was, during all the said period of- two years, a regular butcher, carrying on his business as such in the ^markets of the city of' Richmond, under authority of said city; and that he bought said calves and other cattle, sheep and hogs, for the purpose of slaughtering them and selling them at his stall or stalls in said market, in the prosecution of his said business of a butcher; and that he did so slaughter and sell them. This instruction the court gave; and the defendant excepted.
    After the foregoing instructions were given, which was on Saturday the 10th of October, the jury were sent out to consider of their verdict, and failing to agree, they were adjourned over to the 15th of the month; to which the defendant objected, but the objection was overruled by the court. On the 15th, the jury were again called, and again retired to consider of their verdict; and after a considerable time they returned into court with a verdict in the following words and figures, viz: 1 ‘Under the instructions of the court, we, the jury, find the defendant guilty, and assess his fine at ten dollars.” And thereupon, the attorney for the Commonwealth suggested to the jury to amend the form of their verdict, so as to read: We, the jury, following the instructions of the court, find the defendant guilty, &c., &c. To which amendment, one of the jurors objected. At the instance of the defendant, the jury were then polled, each juryman responding, that was his verdict. And after the polling of the jury and before they were discharged, the defendant moved the court to set q.side the verdict on the ground that the jury had found the defendant guilty under the whole presentment and each count thereof, and there was no evidence on the second and third counts; which motion the court overruled. And thereupon, one of the jury, after hearing the discussion upon the motion to se.t aside the verdict, said that he desired to amend his verdict. The court then, at the instance of the attorney for the Commonwealth, enquired of the jury whether thejr desired to amend their verdict, and took the V9te *of each juryman in open court upon the question; to which proceeding of the court the defendant objected; but the court overruled the objection; and each of the jurymen answering that he did desire to amend his verdict, the court sent them out to consider of their verdict; to which the defendant objected; and after retiring, they again returned into court, and handed in a verdict in the words and figures following, viz:
    Under the instructions of the court, we, 'the jury, find the defendant guilty under the first count of the presentment, and assess his fine at ten dollars; and not guilty ¡ as to the second and third counts of the presentment. To which the defendant objected.
    The verdict in the form last returned was thereupon recorded in the presence of the jury, which was objected to by the defendant; and the jury were thereupon discharged. The defendant then moved the court to set aside the verdict as not the verdict of the jury, and as contrary to the law and the evidence; which motion, the court overruled. And the defendant excepted to all the rulings of the court herein stated, and the exception referred to the first and made it a part of the second.
    The judgment of the court was—Therefore, it is considered by the court, that the Commonwealth recover against the said Wm. W. Sledd, ten dollars, the fine by the jurors in their verdict assessed, and her costs by her in this behalf expended.
    Sledd thereupon obtained a writ of error to the Circuit court, where the judgment was affirmed. And he then applied for and obtained a writ of error from this court.
    Wise, for the appellant.
    The Attorney General, for the Commonwealth.
    
      
      He bad decided tbe case in tbe Circuit court.
    
    
      
      See Frommer v. City of Richmond, 31 Gratt. 649.
    
    
      
      See Robertson’s Case (Ta.), 20 S. E. Rep. 363.
    
    
      
      See tbe act, in tbe opinion of Joynes, J.
    
   JOYNFS, J.

The first question which arises on this record is, whether the Circuit court erred in overruling *the demurrer to the indictment. The ground of demurrer is not stated, but it is supposed to have been founded upon the manner in which the time of the offence is laid.

The indictment which was found in August 1867, charges the offence to have been committed “within two years last past” (two years being the limitation to prosecutions under the revenue laws), and no other time is laid. The term of two years before the finding of the indictment covered a considerable period before the enactment of the statute creating the offence, so that, non constat, but that the offence charged was committed before the' statute was passed. We think that such a mode of laying the time would have been fatal on demurrer, according to the rules of pleading at common law. 1 Chitty Cr. Uaw 223; Wharton’s Precedents 8; People v. Miller, 12 Calif. R. 291, and cases cited. The case is not like that of Nichols and Janes, 7 Gratt. 589. Under an act which went into - operation on the 31st day of May 1848, the indictment alleged that the defendants did, on the 1st day of May 1848, and from thence up to the 8th day of April 1849, not being married to each other, lewdly and lasciviously cohabit together. Though the 1st day of May 1848 was a time, before the statute went into operation, the unlawful cohabitation, which was a continuous offence, was alleged to have continued from that time to a day long after the statute took effect. The General court held the indictment good on demurrer.

According to the rules of criminal pleading at common law, the allegation of time, except where time is the essence of the offence, was the merest formality, and served no useful purpose. It did not limit the Commonwealth in its proof to the time specified, and, therefore, did not serve to notify the accused of the precise act for which he was prosecuted. And whatever time might be laid in the indictment, it was incumbent on *the Commonwealth, in every case, to prove that the act charged was committed at a time when it was an offence against the la"w, and within the period of limitation, if any. The Code (ch. 207, sect. 11) provides, that no indictment shall be quashed or deemed invalid “for omitting to state, or stating imperfectly, the time at which the offence was committed, where time is not the essence of the offence,” &c. &c. &c. “or for the insertion or omission of any other words of mere form or surplusage.” The provisions of this section were designed to get rid of cumbrous and useless technicalities, and ought to receive a liberal construction. If the statement as to time in this case can be regarded as an “imperfect” statement within the meaning of the statute, it is cured by the express words of the statute. If it cannot be regarded as an “imperfect” statement, then it may be rejected as surplusage, as the indictment would be good without it. And as the statement of time may be omitted altogether, it would seem that no mode of stating the time of an offence can now vitiate an indictment.

The Circuit court did not err, therefore, in overruling the demurrer to the indictment.

The act of April 19th, 1867 (sec. 22), provides that “no person shall, without a license authorized by law, canvass any county or corporation in this Commonwealth, or any part thereof, for the purpose of buying or offering to buy, or shall actually buy, any matters of subsistence for man or beast, or for any beverage or for any clothing, or for any materials of which clothing is made.” This provision is copied from the act of February 13th, 1866, except that the words, “or shall actually buy,” are not in the latter act. The act contains an exception of purchases made by a party for his own use, or for the use of his family. The indictment charges in the first count, that the plaintiff in error “did, without a license authorized by law, unlawfully ^canvass the county of Henrico for the purpose of buying and offering to buy, and did actually buy, certain matter of subsistence for man, to wit: Cattle, sheep and hogs, not for his own use or the use of his family, ’ ’ &c. The facts certified sustain all the allegations of this count, and show that the offence was committed after April 19th, 1867_. The other counts need not be noticed, as upon them there was a verdict for the defendant. It was proved that the defendant was a butcher, doing business as such in the city of Richmond, and that he purchased the live stock in the indictment mentioned, for the purpose of slaughtering them and selling them as butcher’s meat in the Richmond market, and that he did slaughter them and sell the meat accordingly. The court instructed the jury, in substance, that the facts that the defendant was a butcher and that he bought the animals and sold the meat prepared from them in the course of his business as a butcher, did not exempt him from the penalties of the act; to which the defendant excepted. After the verdict, the defendant moved the court to set it aside. The motion was overruled; and the defendant again excepted.

The language of the act is general, and embraces all persons except those who buy for their own use or for the use of their families. It is insisted, notwithstanding, that the act could not have been intended to apply to butchers buying live stock to supply meat for their own stalls, and that it should be so construed as to except them. One of the reasons advanced in support of this position is, that butchers are not subject to any tax upon their general business,, from which it is argued that the legislature could not have intended to tax one of the usual modes of obtaining meat for carrying on their Business. But the offence charged and proved against the defendant in this case, was not simply the buying of stock, but canvassing the county for stock and buying it. The fact that the legislature saw fit not *to impose any tax upon butchers as such or upon their general business, has no tendency to show that it did not intend to include them along with all other persons, in language broad enough to comprehend all, in reference to the practice of canvassing, which is not an essential part of a butcher’s business, nor an essential means of carrying it on. Indeed, the legislature may have intended to include them, for the very reason, that they paid no tax on their general business. The language of the act is broad enough to include all persons whatever, who do the acts described, and we cannot make an exception in favor of any class, upon mere speculation and conjecture, however plausible.

It is further insisted that the purchasing of live stock by a butcher is not embraced by the provision we are considering, because the 60th section of the act of April 20, 1867 (Sess. Acts 870), provides, as it is-said, for every case of dealing in horses, mules, asses, jennets, cattle, sheep, and hogs, or any of them, and shows how far the legislature intended to impose taxes upon the dealing in such animals, or any of them. But that section applies only to dealing in the living animals, and to two sorts of such dealing, namely, selling for others on commission or for profit, and buying and selling for profit. The imposition of a tax upon such dealings in cattle, sheep and hogs, does not indicate that when the legislature imposed a tax upon the-practice of canvassing for matters of subsistence and buying them, it meant to except those who thus buy cattle, sheep and hogs. The tax imposed upon those who-buy and sell live stock for profit, and the tax imposed upon canvassing for matters. of subsistence, apply to different sorts of business, and reach different classes of persons.

Thus i-t is argued that cattle, sheep and hogs alive, do not fall within the description of “matters of subsistence forman.” It is insisted that these terms in *the statute embrace only such articles as are themselves food, and not such also as are only materials from which food is made. We do not see any foundation for this construction. The main object of the legislature seéms to have been to derive revenue from a practice which had become prevalent in many parts of the State. The words “matters of subsistence” seem to have been designed to embrace a great variety of things, which could not be enumerated or more specifically described. If the object had been to embrace merely such things as are used as food without a change of their form, it would have been easy to say so by apt and familiar words. If the provision is confined to such articles as are themselves food, or as are consumed in the form in which they are bought up by those who canvass the countrjq it will embrace a very limited number of articles. It will embrace butter, milk and cheese, but it will not embrace poultry, fish, vegetables or eggs, any more than cattle, sheep or hogs. It will not embrace a great majority of the articles which are bought up by the huckster, any more than those which are bought up by the butcher. Such a limited construction, besides not being required by the language, would, in a great measure, defeat the object and policy of the law. We think that the words “matters of subsistence for man,” as used in the act, comprehend all articles or things, whether animal or vegetable, living or dead, which are used for food, and whether they are consumed in the form in which they are bought from the producer, or are only consumed after undergoing a process of preparation, which is greater or less according to the character of the article.

Nor do we perceive any ground for holding that the act applies, as contended by counsel, only to those who “buy things as they sell them in kind.” The act, by its terms, applies to all who canvass and buy, without any reference to the mode in which they sell what they *buy, and without any reference to the purpose for which they buy, with an exception only of those who buy for _ their own use or the use of their families. 'We are not authorized to introduce another exception by construction, without the clearest proof that it was the intention of the legislature to make it.

We do not think it necessary to discuss other views submitted by counsel on this branch of the case. They have all been duly considered, but they do not affect the result. We are of opinion, that the County court did not err in the instruction given to the jury, or in refusing to set aside the verdict as contrary to the law and the evidence.

The County court did not err in allowing the jury to amend their verdict. The jury had not been discharged or the verdict recorded, and it is familiar practice in such a case, to allow the jury, to amend their verdict. Blackley v. Sheldon, 7 John. R. 32; Commonwealth v. Gibson, 2 Va. Cas. 70; 1 Chitty Cr. Law 648.

There is a formal error in the judgment in this, that there is no judgment for the defendant on the second and third counts, upon which he was found not guilty. The judgment will be amended in that respect, and as amended it must be affirmed.

The other judges concurred in the opinion of JOYNfiJS, J.

Judgment amended and affirmed.  