concurring:
The case involves the preliminary and fundamental question—
1. Is section 62 of the Constitution of Virginia restrictive in its effect so that the legislature was without power to enact the statute, Acts 1916, p. 215, except with respect to the provisions of such statute which concern merely the “manufacture and sale of intoxicating liquors” — those portions of the statute prohibiting other acts than such manufacture and sale being, in such view of the statute, in conflict with said section 62 of the Constitution and void ?
This question being answered in the negative, the case involves the following further questions concerning the exercise by the legislature of its constitutional powers, namely:
2. Is the form of the indictment prescribed by section 7 of the act sufficiently specific — does it descend from the genus to the species, from the general to the specific allegations of the particulars of the acts charged, sufficiently to inform the accused of “the cause and nature of his accusation,” so as to comoly with the requirements of section 8 of the Constitution of Virginia?
3. Has the trial court any longer the discretion it formerly had, on motion of the accused, to require the Commonwealth. on the trial of the case, after it has introduced its evidence in chief, to elect on the charge of what offense, or offenses, it will ask the conviction?
These questions will be considered in their order as above stated.
1. With respect to question 1:
Upon the authorities referred to, and for the reasons *850stated in the majority opinion, the first question above must be answered in the negative, and I fully concur in such opinion on this point.
2. With respect to question 2:
The indictment in question is in the form prescribed ,by section 7' of the act, is for first offenses under section 3 of the act only, and under it the same punishment for each offense is prescribed, namely, the accused may be fined (for each offense) not less than fifty dollars nor more than five hundred dollars and be confined in jail not less than one nor more than six months.” See sections 3, 5 and 7 of Acts 1916, p. 216.
Omitting the formal parts, the indictment in the instant case was as follows:
“That John Pine and Sarah Scott, within the four days next prior to the finding of this indictment, in the said city of Roanoke, Virginia, did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, dispense, solicit, advertise and receive orders for ardent spirits.” .
The indictment charges the statutory offenses therein set forth in the language of section 3 of the statute which creates the offenses.
So far as the charges of the respective offenses in the indictment are concerned (laying aside for the present the consideration of the charges of the offenses being all contained in one count), the following may be said :
It is firmly settled in this State, in effect, by a long line of decisions, that (so far as the sufficiency of the charges themselves is concerned) the indictment, prior to the statute in question, would have been good and would have been sufficient to meet the requirements of section 8 of the Constitution of Virginia. Fletcher’s Case, 106 Va. 840, 56 S. E. 149; Rose’s Case, 106 Va. 850, 56 S. E. 151; White’s Case, 107 Va. 901, 59 S. E. 1101; Runde’s Case, 108 Va. 873, 61 S. E. 792; Clopton’s Case, 109 Va. 813, 63 S. E. *8511022; Dix’s Case, 110 Va. 907, 67 S. E. 344; Ferrimer’s Case, 112 Va. 897, 72 S. E. 699; Shiflett’s Case, 114 Va. 876, 77 S. E. 606.
The effect of the majority opinion is, as I think, to overrule all of these cases.
In White’s Case, supra; Arrington’s Case, 87 Va. 96, 2 S. E. 224, 10 L. R. A. 242, and also Head’s Case, 11 Gratt. (52 Va.) 819, referred to in the majority opinion, are distinguished.
As stated by Judge Buchanan, in delivering the opinion of this court in Hatcher & Shaw’s Case, 106 Va. 827, 55 S. E. 677: “Because of the difficulty the Commonwealth has in prosecuting offenses of this kind, or for some other reason, there has been in this class of cases some relaxation of the strict rules as to pleading and the introduction of evidence which generally prevail in criminal cases.” And before the prohibition statute in question was enacted, the rule adopted in this State on this subject (which, however, is the same rule in principle generally prevailing everywhere and as to all crimes [1 Bish. Cr. Pr., sections 81, 82], is that, in such classes of cases, only the acts and circumstances which are of the essence of the statutory offense, or offenses, charged, {i. e., which are the essential ingredients thereof), need be set forth in the indictment.
The result of the decisions above cited is that it has been long established in Virginia by the decisions of this court, that the charge of statutory offenses of this character in the language of the statute creating them includes all that is of the essence of the offense, or offenses, except the laying of the venue and an allegation bringing the case within the period of limitation for the prosecution prescribed by the statute. To illustrate: These decisions hold that the place of the commission of such offenses need not be alleged, save the allegation of the county or city over which the trial court has jurisdiction; nor the time, save *852the general allegation that the offense, or offenses, was, or were, committed “within twelve months last past” (that being the statutory period of limitation) ; nor the person ior persons, other than the accused, concerned in the offense — as the person or persons to whom ardent spirits were unlawfully sold; nor that the act charged was done unlawfully, or the like. All these and other circumstances than the two involving the laying of the venue and bringing the charges within the statutory period of limitation, not being of the essence of the statutory offenses, are not necessary to be specifically charged to meet the requirements of section 8 of the Constitution of Virginia aforesaid. In other words, that in such cases an indictment in the language of the statute creating an offense, with the added allegations to the effect that the offense was committed in the county (or city) having jurisdiction of the trial of it, and that it was committed “within one year” (where the statute, as in the instant case, prescribes that period of limitation) is sufficient to meet such constitutional requirement.
This holding is sound, too, on principle.
What is said in the majority opinion and quoted from various cases, on the subject of an indictment in the language of a statute being insufficient to inform the accused of the cause and nature of the accusation against him, is true in general terms. But where the offense is malum prohibitum only, and the statute designates the acts, which it creates into an offense or offenses, the nature and cause of the offense are charged with ■ sufficient particularity in the indictment by the use of the language of the statute creating it, so that no further descent into particulars is necessary therein.
The cases of United States v. Cruikshank, 92 U. S. 543, 23 L. Ed. 588, and State v. Terry, 109 Mo. 601, 19 S. W. 206, cited and especially relied on in the majority opinion, do not involve the question under consideration, namely, *853whether, where a statute makes a definite act or acts named therein an offense or offenses (as is true of the statute before us in the instant case), an indictment following the language of the statute complies with the constitutional requirement in question so as to inform the accused of the nature and cause of his accusation? These cases indeed admit that the rule is that an indictment in the language of the statute is sufficient to comply with this constitutional requirement where “the statute describes the whole offense and the indictment charges the crime in the words of the statute.” State v. Terry, at p. 601 of 109 Mo., at p. 206 of 19 S. W., quoting from C. J. Shaw’s opinion in Tully v. Com., 4 Metc. (Mass.) 358. See, also, United States v. Cruikshank, at pp. 548-9, 557, of 92 U. S., 23 L. Ed. 588. The whole of this very quotation, indeed, correctly points out the precise distinction between the cases where the charge of the offense in the language of the statute creating it is not sufficient to comply with the constitutional requirement as to giving notice of the cause and nature of the accusation, and the cases where such charge is sufficient to comply with such constitutional requirement. The whole quotation referred to is as follows: Where a statute punishes an offense by its legal designation, without enumerating the acts which constitute it, then it is necessary to use the terms which technically charge the offense named at common law. But we think this is not necessary where the statute describes the whole offense and the indictment charges the crime in the words of the statute.” The same opinion then proceeds with the following quotation from Whart. Cr. Pl. & Pr., section 220: “On general principles of common law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory *854terms, what the offense he is to be tried for really is.” (Italics supplied).
The statute so far individuates the offense when it, itself, designates the acts which it enacts shall constitute the offense or offenses created thereby.
In United States v. Cruikshank, supra, the indictment was for conspiracy under the 6th section of the act of Congress of May 31, 1870, known as the enforcement act (16 U. S. Stat. 140, C. 114 [Comp. St. 1916,- section 10183]), by which the offenses created thereby are made to consist in the unlawful combination, with an intent to prevent the enjoyment of any right granted or secured by the United States Constitution, etc. All rights are not so granted or secured. Whether one is so or not was a question of law to be decided by the court. The statute did not describe the whole offense — name the acts which would constitute the offense. Hence, the court held that the indictment should state the particulars to inform the court as well as the accused of the nature and cause of the accusation. There the particulars not covered by the allegations in the language of the statute were of the essence, or were essential ingredients of the offense.
In State v. Terry, 109 Mo. 601, 19 S. E. 206, the indictment was for an attempt to obtain money by fraud, in the form prescribed by statute for such an indictment. This form did not contain a description of the money, or the means used to obtain it. The court held that the two things last named were essential ingredients of the offense charged, were not covered by the allegations of the indictment, and, although the form of the indictment was as prescribed by statute, that statute was itself unconstitutional, in that it did not require all of the essential ingredients of the offense to be charged in the indictment.
These, therefore, were very different cases from one such as the instant case, where the statute itself under which it *855was found provides that certain acts therein named shall themselves constitute, respectively, the several offenses thereby created, and sets forth the prohibited acts which are made such offenses by the statute.
Independent of authority elsewhere, however, the rule in Virginia on the subject has been firmly settled, as aforesaid, by the long line of decisions of this court above eited.
The majority opinion enumerates some of the acts designated by the statute in question as offenses under the statute, to-wit: (1) to transport for sale; (2) to advertise for sale; (3) to aid in procuring ardent spirits, and (4) to act as agent or employee in certain instances, as not sufficiently charged in the indictment. The last two acts named are not charged in the indictment in the instant case following the form of section 7 of the statute. Reference will be hereinafter made to the subject of the first named acts. I am unable to perceive why the charge in an indictment, that the accused did “advertise for sale * * * ardent spirits,” (the offense of advertising under section 3 of the act) is not as much a sufficient allegation of that act as the allegation that he did “manufacture,” or “sell,” or “offer, keep, store and expose for sale,” “give away,” “dispense,” “solicit and receive orders for ardent spirits.” All of the latter allegations, being in the language of the statute creating offenses of such acts, respectively, have been held (expressly as to some and by necessary inference as to others) by the long line of Virginia decisions aforesaid to be sufficient to comply with the constitutional requirement on the subject. The indictment put in issue the ultimate question of facts of whether the accused did “advertise for sale ardent spirits,” and in the case of advertising, prohibited by section 3 of the act, as in the cases of the other acts charged in the indictment, the latter put in issue the ultimate questions of fact, whether the respective acts charged were done by the accused. The circumstances attending *856and the various details of the action going to make up and constitute the ultimate acts prohibited by the statute are mere matters of evidence, equally in all such cases, and are not necessary to be charged in the pleading (the indictment) .
Hence, with respect to the character of offenses we are considering, charged in the indictment in the instant case, the precise point is this, the indictment need not use other language than the statutory language creating the offense —need not descend to other particulars in the charge of the commission of the offenses — except to lay the venue and bring the cause within the statutory period of limitation upon the prosecution.
The form of indictment prescribed by section 7 of the act fulfills these requirements. So does the indictment in the instant case. The latter charges the precise date on which the offenses charged are alleged to have been committed, although that particularity was unnecessary, as aforesaid, and lays the venue.
I cannot arrive at any other conclusion, therefore, than that the indictment in the instant case is sufficient to meet the requirements of section 8 of the Constitution of Virginia.
Hence, under the firmly settled rule aforesaid, established before the statute in question was enacted, so far as the particulars of the offenses charged in the indictment are concerned, the indictment itself gave to the accused all the information necessary for the preparation of his defense which the Constitution requires; and, therefore, the indictment needed no bill of particulars to aid it.
Indeed, if the practice of requiring a bill of particulars to be furnished in criminal cases, heretofore unused in Virginia, were adopted by us in practice, if that practice were made to accord with it as prevailing elsewhere (as indeed is noted in the majority opinion), it would not be manda*857tory upon, but would rest merely in the, sound discretion of the trial court, to require a bill of particulars in certain cases. This would not, in all cases, aid the indictment in the matter of particularity of its allegations — of its descent from the general to specific allegations. And it would open up a wide field of judicial uncertainty as to when the court should exercise its discretion to require a bill of particulars to aid the indictment in complying with the constitutional requirement aforesaid. The majority opinion suggests that the practice of requiring a bill of particulars in such case be adopted with this addition to the practice, namely, that its requirement be made mandatory In certain cases. This would be something new in procedure never prevailing as a hard and fast rule at common law. 1 Bishop on Cr. Pr., section 533 and section 454. And if the latter rule were adopted it would be in effect but a requirement that the indictment be more specific in its charges of the offenses in question than has been the practice heretofore in Virginia. The change in practice would accomplish nothing new or beneficial in effect. If an indictment is insufficient to comply with the requirements of section 8 of the Virginia Constitution, the question can be raised as well by motion to quash the indictment under our established practice as by a motion for a bill of particulars to aid the indictment. With all due deference, therefore, I am of opinion that there is no need for any change of practice on the subject; and I think, moreover, that such change would open a Pandora’s box of uncertainties about matters which have been long set at rest by the decisions of this court.
The majority opinion, while saying that the indictment is sufficient under section 8 of the Virginia, Constitution, yet holds it insufficient unless aided by a bill of particulars. The opinion holds that the indictment is sufficient on demurrer only and because the constitutional requirement is *858not that the needed information must be furnished by am, indictment, and hence that it may be furnished in some other way, namely, by a bill of particulars; and that the court, by changing the practice in Virginia so as to require a bill of particulars in such case in aid of the indictment, can supply the constitutional requirement in question. With the utmost deference, it seems clear to me that in making such requirement the court is adding a requirement not in the statute, and to that extent it is modifying and changing (and, in effect repealing) the statute. There is no statute or rule of practice heretofore existing in Virginia providing for a bill of particulars in criminal cases. Hence, the legislature, by the act in question, has, in effect, said that the indictment in the form in which it is in the instant case is sufficient in itself to inform the accused of the cause and nature of his accusation, without the aid of anything else whatsoever. To hold otherwise is to abolish this rule everywhere established, in doing so to overrule the long line of decisions in Virginia on the subject, and, further, in effect to repeal the statute under consideration, pro tanto.
I am not opposing the idea that the requirement of a bill of particulars in criminal cases, as in civil cases, would be in aid of the accused, in that it would lessen the burden otherwise resting upon him of coming to trial prepared to make his defense in all particulars against the charges against him put m, issue by the indictment, or that the appeal might not be very strong to the legislature to provide for such aid being extended to the accused in some criminal cases; but it seems to me'that it is significant that the legislature has never so provided, and further that our courts have never put such a practice into effect in any criminal case. And on an appeal to the legislature to enact such a provision, if made, I can understand how the legislature' might regard the Commonwealth in prosecuting the statu*859tory offenses under consideration as not standing in the same position as to possession of information before trial of particulars - touching the commission of the offense or offenses put in issue as is the plaintiff in a civil case touching the particulars of his own cause of action, they being naturally within his own knowledge. Hence, I can understand how the legislature might hestitate to require the same particularity of statement of the Commonwealth in such cases as is required (by statute in Virginia) of a plaintiff in civil cases, by bill of particulars, and how such requirement might result in serious and undue embarrassment of the former in enforcing the statute creating such offenses, and how the legislature might decline to extend such aid to the accused in such cases;.as indeed it has declined to do by enacting, as it has done by the statute in question, that the indictment in question' is sufficient as aforesaid. If this is a hardship upon the accused in such cases, it is a hardship imposed by the legislature, which, if not inhibited by the Constitution, the courts are powerless to relieve against.
Hence, the question involved in the proposition, that the court shall inaugurate the practice of requiring a bill of particulars in cases of the character under consideration, in turn involves, after all, the ultimate question, whether the statute in enacting, in effect, that an indictment charging the offenses as they are charged in the instant case, is in violation of section 8 of the Constitution of Virginia? As we have seen above, such question must, as I feei, be answered in the negative and in favor of the sufficiency of such an indictment.
It is true, as noted in the majority opinion, that section 7 of the said statute omits the charge of the offense of transporting ardent spirits for sale from the form of indictment thereby prescribed. This was a manifest clerical omission. Its effect is, clearly, only that, under an indictment follow*860ing the form of such section of the statute, no evidence of transporting ardent spirits for sale would be admissible, if objected to, and in such case, unless the indictment was properly amended, there could be no conviction thereunder of the offense of transporting ardent spirits for sale. No such evidence was offered or admitted in the instant ease, and so this point does not arise therein.
It results from the foregoing considerations, that the only change which section 7 of said act has made in the law, as it was aforetime, is to allow, in the charge of an offense or offenses under the statute, all of the offenses created by sections 3, 4 and 5 thereof, to be charged in one indictment.
As correctly pointed out in the majority opinion, if the indictment is sufficiently specific in its charges to be valid under section 8 of the Constitution of Virginia (and the act is not in contravention of section 62 of the Virginia Constitution), the power of the legislature to provide such form of indictment is plenary and the indictment is good. As we have above seen, the indictment does not contravene section 8, and the majority opinion agrees that it does not contravene section 62, aforesaid.
The conclusion necessarily follows that upon such an indictment as that in the instant case, the accused is put upon his defense of all of the offenses charged in the indictment and must come to trial prepared to defend against all of such charges.
From the standpoint of the accused, the hardship and danger of injustice resulting from such a requirement as that mentioned in the last above paragraph is more theoretical than real. It is, in truth, less burdensome in loss of time and expense to the accused to meet a number of charges in one trial than in a number of separate trials. The accused has to bring his witnesses to meet all of the charges upon which he is in fact indicted, either in several, *861or in one trial. The punishment prescribed by the statute for several offenses of which the accused may be found guilty in one trial is no greater than if there were several trials, and, in practice, it is a matter of common knowledge that the aggregate of punishment inflicted by the verdict of one jury in a single trial is apt to be less than of several different juries in separate and distinct trials. And if there be any hardship in the requirement that the accused must come to the trial prepared to defend against a number of charges in the indictment in one trial, since there is no infringement of his. constitutional guarantees and the power of the legislature is plenary on the subject, to the extent it has gone in the enactment in question, as stated in substance above, the courts are powerless to afford the accused any remedy. The legislature has spoken on a subject left by the Constitution, and wisely left, I think, in its discretion. It is not within the province of the courts to interefere with that exercise of this legislative function. But—
Touching the foregoing subject, and with respect to misdemeanors, as stated by Mr. Bishop, 1 Bishop Cr. Pr. (4th ed.), sec. 458: “* * * the doctrine of the English and most American courts is * * * that if a man has been engaged in a course of unlawful conduct resulting in a hundred legally distinct petty offenses, and the executive officers of the government have determined to exercise their right, not controllable by the judiciary, to bring him to trial for all, it is a piece of sheer oppression to him to compel them to find against him a hundred indictments, and require him to stand his trial a hundred times, instead of answering to all at once. Moreover, on broader views, some deem, the author submits rightly, that the joining in proper cases of distinct misdemeanors in one indictment, followed by their trial at one hearing before the petit jury, and the punishment of each as though on a separate indictment, are *862essential to the administration of real justice — in some cases essential as protecting the accused from the overburden of needless trials, in others as saving the courts from being blocked by them to the utter suppression of public justice.” (Italics supplied.) See also the note of Mr. Bishop {Idem), p. 258, on Tweed Case, where there were charges of four hundred and twenty offenses for violation of a statute in one indictment.^
Hence, question two above must be answered, I think, in the affirmative.
3. Coming now to the consideration of question three above, concerning the right of the- accused to have the Commonwealth elect in such a case as that at bar.
In felony cases as a general rule, subject to a few exceptions not material to be noted here, there can be but one conviction of a felony under one indictment, although in the discretion of the trial court, several separate felonies may be allowed to be charged therein, if in several counts, a separate count for each offense. Hence, the right of the accused to have the Commonwealth make the election aforesaid on the trial of the case always exists in all felony cases, except in the few instances where there may be more than one conviction under one indictment. Dowdy’s Case, supra; Lazier’s Case, 10 Gratt. (51 Va.) 708; Anthony’s Case, 88 Va. 847, 14 S. E. 834; Johnson’s Case, 102 Va. 927, 46 S. E. 789; Kane v. People, 8 Wend. (N. Y.) 211; Mitchell’s Case, 93 Va. 775, 20 S. E. 892.
In misdemeanor cases the rule is different. Prior to the prohibition statute we have under consideration, there might be more than one conviction of different misdemeanors under one indictment. From very early times, it has been universally held that, where the misdemeanors are of the same general nature and their punishment is the same (or, indeed, where the punishment is similar), when the mode of trial is the same and the convenience of the court or the *863due administration of public justice does not require separate trials, there may be as many convictions of several different misdemeanors in one trial under one indictment as there are separate counts in the indictment charging them; and that only where there is but one count in the indictment in a misdemeanor case, which charges several of such different misdemeanors, does the rule apply that there can be but one conviction, in the one trial, of one misdemeanor^ 1 Bishop Cr. Pr. (4th ed.), secs. 457, 458, 459, 460, 452; Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208, citing 1 Chitty’s Cr. Law, pp. 252-3, and Archibald (8th ed.), chap. 3, p. 95. See also to same effect Young v. The King, 3 T. R. 106; Dowdy’s Case, supra; Benton’s Case, 91 Va. 782, 21 S. E. 495; Mitchell’s Case, supra; Lewis' Case, 90 Va. 843, 20 S. E. 777; Fletcher’s Case, supra; Peer’s Case, 5 Gratt. (46 Va.) 874.
Therefore the doctrine of the right of the accused to have the Commonwealth elect on which charge or charges in the indictment it' will ask conviction, before the prohibition statute under consideration was enacted, was uniformly applied in misdemeanor cases only where there could not be conviction of all the offenses charged in the indictment in the one trial. And the settled rule was that there could be only one conviction of one offense in one trial in misdemeanor cases only where, either (1) there is but one count in the indictment (Hatcher & Shaw's Case, supra; Dix’s Case, supra, in which there was only one count in the indictment), or (2) where it is made to appear to the trial court that the accused would be “injured in his defense by the joinder” (of several distinct misdemeanors, different in their nature and in their punishment or mode of trial), “or for its (the court’s) own convenience, or to conserve the administration of public justice,” such joinder should not be allowed in one trial. (1 Bish. Cr. Pr., secs. 452, 453.)
*864Mr. Bishop says, in 1 Bish. Cr. Pr., sec. 452: “By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment, to be followed by one trial for all, and by conviction for each, the same as though all were charged in separate indictments; subject to practical limitations from judicial discretion. Thus, * * * in liquor-selling, when made by statute a misdemeanor, with a fine for each sale, several counts for distinct sales may be combined in one indictment, and the accumulated penalty. imposed.” (See also the quotation from 1 Bish. Cr. Pr., sec. 458, above.) Mr. Bishop adds (Idem, sec. 453) : “As limiting this doctrine — the court, to protect the' defendant from being injured in his defense by the joinder, or for its own convenience, or to conserve the due administration of public justice, will on application quash a part of the counts or put the prosecutor to elect, or otherwise, as and if the judicial discretion indicates. Therefore * * * the joinder will be thus restrained if the offenses are of different natures, or especially if the punishments are not the same * * * ” (Italics supplied.)
Hence, touching the rule (2) above referred to, by which the judicial discretion of the trial court is guided (independent of statute), in not allowing the joinder of different offenses in misdemeanor cases, clearly, as shown by the authorities, the number of such offenses, or that the offenses are “widely separated by time, place and circumstances,” are not grounds upon which the judicial discretion to apply such rule can be invoked. (1 Bish. Cr. Pr., secs. 452, 458.) I am constrained, therefore, to the view that the majority opinion, in laying down a contrary rule, is suggesting a new proposition, unknown to the law heretofore. The rule laid down by Mr. Bishop was the established practice in Virginia, independent of the aid of any statute. In Mitchell’s Case, supra, it is said: “In the case, however, of misdemeanors, which are punishable by fine and imprisonment, *865the prosecutor is permitted to join and try several distinct offenses in the same indictment and without being required to elect on which charge he will proceed.” In Peer’s Case, supra, it was held that there might be a trial of the charges in one indictment in two separate counts of two separate offenses of illegal sales of ardent spirits to two different persons. In Lewis’ Case, the one indictment contained ten counts, each charging a sale to a different person, which constituted separate and distinct offenses. There was a demurrer to the indictment in the trial court, which was overruled. There was a conviction for three of the offenses charged, three fines of $100.00 each imposed, and a sentence of thirty days’ imprisonment in the county jail. This court, in its opinion delivered by Hinton, J., said: “The counts are couched in the usual formal language adopted in such cases, and advised the defendant fully of the specific charges he was called upon to answer, and the demurrers thereto were properly overruled.” The convictions were sustained by the court. Similarly, in Fletcher’s Case, supra, the accused, in one trial, under one indictment, which charged “within twelve months last passed” fifteen different sales of ardent spirits to fifteen different persons named, and a sixteenth sale without naming any person to whom it was made, was convicted of the sixteen different offenses charged (which must have been committed at different times) and the fines aggregated the sum of $8,200. It is true no objection seems to have been made by the accused to being charged with and tried for the several different offenses in one trial under one indictment, but he could have made no such valid objection after the decisions of this court in Peer’s Case, supra, where such precise objection was unsuccessfully made, and Lewis’ Case, supra, where the precise objection was not made, but where there was a demurrer to the indictment which had the effect of presenting of record to the appellate court the defect in the in*866dictment, if one existed; and counsel in the case and this court evidently considered the practice settled and not open to valid objection. Peer’s Case, Letois’ Case and Fletcher’s Case, therefore, show what was the established practice on the subject in this State prior to the prohibition statute in question, certainly with respect to distinct offenses consisting of different sales of ardent spirits being charged and conviction therefor being had in one trial. [As above noted, in White’s Case, supra, and subsequent cases in this State, it is held, under a statute such as the prohibition act in question, making the statutory offenses created thereby such offenses if they occur anywhere in the State, or with any person whatsoever, that allegations of the place of the commission of the offenses (other than the laying of the venue), and of any person connected with the commission of the offense (other than the accused — -as of the person or persons to whom illegal sale or sales is or are made), are unnecessary.]
Now concerning joinder (independent of a statute authorizing it) of the other offenses created by section 8 of the act, with charges of illegal sales, in one indictment followed by the trial and conviction of all of them in one trial: As we have seen above, the general rule prevailing in the English and most American courts is, that where a course of unlawful conduct is charged (as in the indictment in the instant case) in violation of a, statute, an unlimited number of petty offenses (misdemeanors), resulting from any such conduct, may be properly joined in one indictment and one trial. 1 Bish. Cr. Pr., sec. 458. It is not apparent, as an abstract proposition, that it would be more injurious to the accused to have to defend in one trial a charge of illegal manufacturing, joined with a charge of illegal selling of ardent snirits, or several of either, in violation of the same statute, than so to defend a number of charges of such different sales only, ividely separated in *867time and place. Arid so as to the other statutory offenses under section 3 of the act. If, however, it were made to appear to the trial court that, because of peculiar circumstances or situation of the accused, such joinder of offenses in one indictment and trial would in fact injure his defense, undoubtedly (independent of statute authorizing such joinder) the trial court would have the discretion, on motion to quash, or on motion to have the Commonwealth elect as aforesaid, to give the proper relief to the accused. But even in such case the peculiar situation aforesaid must be mads to appear to the trial court, by the motion or otherwise, before it could be required' to exercise its discretion aforesaid in the matter, and before this appellate court could be asked to review and reverse the action of the trial court on the subject. This was not done in the instant case.
Further: Touching the rule (2), above referred to, by which the judicial discretion of the trial court is guided (independent of statute) in not allowing the joinder of different offenses in misdemeanor cases, where “the punishments are not the same.” As we have seen above, the indictment in the instant case is for first offenses under section 3 of the act, and the punishment for each offense charged in "the indictment are, under section 5 of the act, the same.
Now section 7 of the prohibition statute, in the view I take of it, did not go beyond allowing to be charged in one count of the indictment the several different offenses which, under the established practice in this State prior thereto, might have been properly charged therein under separate counts, and allowing the several convictions to follow accordingly in the one trial. In this matter also, therefore, the statute under consideration merely adopted and made statutory the rule on the subject already settled by this court, with the sole modification that the statute applies the rule to an indictment containing the several charges in only one count.
*868But, if this were not so, clearly the. statute allows the joinder of the charges named in section 7 of the statute, in one count of the one indictment, and, as a statutory rule of procedure, it is valid, even if it changes the common law rule on the subject, since it infringes, as we have above seen, on no constitutional limitation of the legislative power of enactment in this behalf. Moreover, the statute on this point being constitutional, it took away the judicial discretion aforesaid theretofore existing to disallow joinder in one trial of separate offenses differing in their nature, to the extent of those named in section 7 of the act, expressly thereby allowed to be joined. As to the joinder of such offenses as are there named, the legislature has spoken, in the exercise of its discretion, and the statutory enactment has superseded the judicial discretion theretofore existing.
That this is true will even more clearly appear from the following further considerations:
The doctrine of the election aforesaid was applied to misdemeanor cases of the character of the instant case, for the reasons so lucidly expressed by Judge Buchanan in the leading case on this subject aforesaid (Hatcher & Shaw’s Case, 106 Va., at pp. 830-1, 55 S. E. 677). Such reasons apply only to a case where there cannot be conviction in the one trial of all the offenses charged in the indictment. (In that case there could be but one conviction as the law then stood, because there was but one count in the declaration.) To cases in which, in one trial, there cannot be conviction of all of the offenses charged, such reasons are properly applicable. But not so as to a case where there can be conviction in the one trial of all the offenses charged. If in a case where there can be more than one conviction, the Commonwealth may be compelled to elect one offense charged, or two, or three, or any number of such offenses, for which it will ask for conviction, less in number than all of the of*869fenses charged in the indictment, manifestly the Commonwealth may thereby be deprived of its right to try and convict the accused of all of the offenses charged, and properly charged, in the indictment. If the rule were construed to mean that the Commonwealth may elect to rely upon all of the offenses charged for which it will ask conviction, this rule would amount to nothing; the whole matter would be left, after all, in the discretion of the Commonwealth’s attorney. There, indeed, it is left, and, I think, properly left by the statute in question. It could not be otherwise without depriving the Commonwealth of its well settled right; without the aid of said statute, to prosecute, try and convict the accused, in one trial, if it chooses and can prove his guilt, of a number of separate and distinct misdemeanors, provided the indictment therefor is found by a grand jury and is in legal form, and contains only charges of offenses of which there may be conviction of all in one trial, and, since the statute clearly confers such a right On the Commonwealth, a different rule of practice would repeal the statute on this subject.
In regard to the point urged for the accused in the instant case, that for the offense of “advertising” charged in the indictment, a different mode of trial is prescribed by section 19 of the act than is prescribed for the offenses created by section 3 of the act, and that for this reason such offense cannot be joined with the other offenses charged in the indictment. It is true that (independent of statute) where the mode of trial is not the same, there can be non-joinder of the offenses in the same indictment (1 Bisch. Cr. Pr., section 453); but under the rules applicable to the construction of statutes, section 19 of the act must be held to refer to advertising by methods specified in that section, and section 3 to advertising in some method other than those specified in section 19 aforesaid. This relieves the court from the consideration, in the instant case, of *870whether the statute permits misdemeanors to be joined in one indictment which have prescribed for them a different mode of trials, and whether such a change of the common law rule on the subject would be unconstitutional.
It may be proper to add that the majority opinion seems to consider the procedure by motion of the accused to have the Commonwealth elect as aforesaid as in aid of the indictment in the lack of sufficient specifications in its charges to inform the accused of the “cause and nature of his accusation” to enable the latter to prepare his defense. Such motion is wholly unsuited to serve such a purpose. It comes too late therefor. It is settled that it is properly to be entertained by the court only after the Commonwealth has closed its introduction of evidence in chief, Hatcher & Shaw’s Case, supra. It is manifestly then too late for the Commonwealth to furnish the accused with specifications of “the cause and nature of his accusation,” to comply with that constitutional requirement, or aid in complying with it, in any true sense, or substantial way.
The use of the motion in practice has been a wholly different one. Where there cannot be conviction in the one trial of all of the offenses charged in the indictment, the accused is informed on what charge or charges the conviction which can be had is asked. Thus time and expense to the accused is saved in rendering it unnecessary for the latter to offer evidence to meet other charges and the mind of the jury is brought to the consideration of a single offense. Hatcher & Shaw’s Case, supra,. These are important results, but, aside from the impracticability of their attainment without unduly taking away the rights of the Commonwealth, aforesaid, in cases where there may be conviction in a single trial of all of the offenses charged, above noted, they are objects entirely different from that of having the accused notified, in time to prepare his defense, of what charges he must come to trial prepared to meet. Hav*871ing, upon his coming to trial, prepared himself to meet all of the charges, as he must do, if he acts wisely under the procedure of the motion to elect, that procedure could in no case, even under the practice prevailing before the prohibition statute, in any degree relieve the accused of that burden. The motion to elect, therefore, could never, in our practice, have taken the place of a bill of particulars, or have aided an indictment in its lack of proper specific allegation of the particulars of the offense charged, for the purpose for which such specific allegations are said to be needed. The motion to quash, however, would serve this purpose. By’ the latter motion the accused can obtain such particularity in specific allegations of the indictment as may be required by the Constitution or otherwise by law. •
In regard to the point urged in the petition that the verdict should have specified of which of the offenses charged in the indictment the jury found the accused guilty, because otherwise the verdict is no protection against future prosecutions, it should be said that, all of the offenses charged in the indictment having been properly charged, the accused, by the trial thereunder, has been put once in jeopardy for all of those offenses committed "within twelve months last past” next preceding the indictment, and can plead autrefois convict or c/utrefois acquit in bar of any subsequent prosecution for any and all of such offenses within such period.
In connection with all of the foregoing views and conclusions, it is assumed that the grand jury, in the instant case, in fact found a true bill against the accused for all of the several offenses charged in the indictment. It is elementary law that the accused could not be put to trial for any of such offenses for which he was not indicted, where the statute, as in the instant case, requires the procedure by indictment. The indictment is the safeguard provided by the statute to save the accused from unfounded charges. To ilh^trate: If it be true that the grand jury in fact *872found a true bill against the.accused for only one of the offenses charged in the indictment, or two, or any number less than the whole number of offenses so charged, and yet left, in the form of indictment as prepared and sent in to the grand jury by the Commonwealth’s attorney, another charge, or other charges, of offenses as to which they did pot find a true bill, it is manifest that they went beyond what the true construction of section 7 of the statute aforesaid authorizes. Necessarily, the true construction of such section is that the grand jury may use the form thereby prescribed in its statement of the several offenses- therein named to the extent that a true bill is found by them with respect to the charge or charges of the commission by the accused of such offenses, and no further. Otherwise, as indicated above, the statute would be construed to authorize the trial of the accused upon charges upon which there has been no indictment of him by a grand jury.
This indeed would be a hardship — is in truth the chief hardship of which the accused complains in the instant case —and, if it appeared of record to exist in such case, the judgment should be unhesitatingly reversed. But the indictment in the instant case does not merely follow the form of the indictment provided for in section 7 of the act; it does not contain the charges of all the offenses therein named. This is some indication that the grand jury, in the instant case, found a true bill as to all of the offenses in fact charged in the indictment. However, after indictment found and the grand jury is discharged, their proceedings in this particular cannot be inquired into. The trial court, indeed, before the discharge of the grand jury, has the whole matter under its control. It may, by polling the grand jury and inquiry as to what charges stated in the indictment they have found a true bill, ascertain that fact and eliminate any chance of charges being left in the form of the indictment as drawn and retained therein as charges as to which a true bill is found, when in fact no true bill *873is found with respect thereto. In view of the danger of such error occurring, it would be the better practice for the trial court, upon its own motion, to adopt this procedure in dealing with indictments under said section 7. If it does not, the acused, if present when the indictment is presented to the trial court by the grand jury, may by motion have the trial court pursue this course of procedure. If the accused is not present, or, if present, does not make such motion, and the grand jury presents the indictment in the form in which it is in the instant case as a true bill, and is discharged, or in any case, in whatever form the grand jury, on being discharged, leaves the indictment as its presentation thereof to the trial court, such indictment, as in fact presented to such court, must be taken by the trial court and by this court to be the indictment found by a grand jury. The subject cannot be further inquired into after the grand jury has been discharged.
Manifestly, the question as to whether there is a lack of a true bill as to any of the charges stated in the indictment cannot be raised by the motion to have the Commonwealth elect on which charge, of charges, it will ask for conviction. Such question must and can be raised only in the preliminary proceedings aforesaid before the trial court, before the discharge of the grand jury.
The question under consideration not having been raised in the instant case so as to make the fact appear of record that the accused were tried for any offense or offenses for which they were not in fact indicted, I think there should be no reversal of the judgment of the trial court on such ground.
I concur in the other conclusions reached in the majority opinion on the special points arising in the instant case, and in the result of affirmance of the judgment of the court below.
For the foregoing reasons, however, I feel constrained to file this separate opinion.