Dissenting Opinion.

but failed to do so; and, in some of the phases presented in it, the prisoner was certainly guilty of an offence proper to be punished, yet the instruction concluded with, "they (the jury) shall find the prisoner not guilty." Besides, every proposition of law contained in the instruction, proper to have been given in the case, had been covered by the instructions already given. Where the instructions given for the Commonwealth and the prisoner, read as a whole, set forth the whole case correctly and fairly, as was the case here, it is not error to refuse other instructions. Reed's Case, 98 Va. 827, 36 S. E. 399; Willis' Case, 32 Gratt. 929.

The remaining assignment of error is to the refusal of the court below to set aside the verdict and award the prisoner a new trial. Having made a full statement of the case as disclosed by the record, it is needless to review the evidence at length.

We know of no law that justifies the taking of human life in the manner and under the circumstances narrated in this record, even if the facts and circumstances surrounding the homicide be as the prisoner would have us to believe existed when he took the life of the deceased, John Collings.

Upon the whole case, we are of opinion that it is plainly one in which the verdict of the jury should not be disturbed. Therefore, the judgment complained of is affirmed.

BUCHANAN, J., dissenting.

I concur in the result, but not in the opinion of the court. I do not think that section 3167 of the Code of 1887 authorizes a view in criminal cases, as the court holds. The chapter in which it is found in the Code applies solely to juries in civil cases. By the Act approved March 18, 1884 (Acts 1883-'84. p. 702, c. 523), entitled "An act to revise and digest the Code and statutes of Virginia," it was made the duty of the revisers to collate and revise all the general statutes of the Common

Dissenting Opinion.

wealth. In performing that duty they were required, among other things, to "arrange all the statutes under appropriate titles and chapters."

Section 3167 of the Code is found under "Title 46," entitled "Courts and Juries in Civil Cases" (Code, p. 731), and in chapter 152, entitled "Of Juries in Civil Cases" (Code, p. 750). These titles are parts of the Code. This is so, it seems to me, both from the language of the act directing the manner in which the Code should be revised, as well as from the fact that the titles were in the Code when it was reported to and adopted by the Legislature. This view is sustained by Judge Burks, one of the revisers. In his address before the State Bar Association in 1891 (Bar Association Report for that year, p. 110), he says: "It should be observed that the title of contents of sections prefixed to each chapter, and the headings of the revised sections taken from the title, together with the notes and marginal references to adjudged cases, were the work of the revisers, done in course of the publication of the Code after it was adopted. It was authorized by a section of the act directing the publication. That section was taken literally (with change of names) from the act directing the publication of the Code of 1849. It is hardly necessary to say that these titles, headings of sections, notes, and marginal references, prepared after the Code was adopted, and published with it, though authorized as a matter of convenience, constitute no part of the law." His language clearly implies that the titles to the chapters were a part of the Code. Not only did the Legislature think that section 3167 of the Code did not apply to criminal cases, but that was the view of the revisers, also, for in the same address, at page 111, Judge Burks says: "Some errors of the revisers, the result of oversight while under great pressure, were discovered by them after the Code was adopted, and before it went into operation. These, at their instance, were corrected by the Legislature at the session of 1887-'88,

Dissenting Opinion.

and the amendments will be found in the acts of that session." The act referred to by Judge Burks was Chapter 15 of the Acts of 1887-'88, pp. 15-18. By section 4048 of that chapter it is provided that section 3167, together with eleven other sections of the Code (naming them), "shall apply to jurors and juries in all cases, criminal as well as civil.”

Providing that those sections should apply to criminal as well as civil cases was not, in my opinion, amending them, within the meaning of section 15 of Article V. of the Constitution. It was merely extending their operation to another class of cases, without in any way amending or changing them. This seems to have been the view of the revisers, since the act making them applicable to criminal cases was passed at their instance, and doubtless drawn or approved by them. They would scarcely have drawn or approved an act intended to correct their own mistakes, and asked the Legislature to pass it, unless they were fully satisfied that it was not in conflict with the Constitution of the State.

That act, and not the Code, in my judgment, authorized the County Court to direct the view of which the prisoner complains.

Affirmed.

Syllabus.

Staunton.

YOUNG V. COMMONWEALTH.

September 17, 1903.

1. CONSTITUTIONAL LAW-Meaning of “Liberty."-The liberty of the citizen which is guaranteed by the Constitution of the United States and of this State embraces not only the right to go where one chooses, but to do such acts as he may judge best for his own interest not inconsistent with the equal rights of others, to follow such pursuits as he may deem best adapted to his faculties and will afford him the highest enjoyment, to be free in the enjoyment of all of his faculties, to be free to use them in all lawful ways, to live and work where he will, and to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which he may deem proper, necessary and essential to successfully conduct his private concerns.

2. CONSTITUTIONAL LAW-Regulation of Private Business-Police Power.— The only authority which a State has to prohibit, regulate or control the private business of a citizen grows out of its "police power," or power to enact laws pertaining to the public health, the public safety or the public morals. A statute regulating such private business in a manner which in no wise pertains to public health, safety or morals is not a valid exercise of the police power. 3. CONSTITUTIONAL LAW-Police Power-Trading Stamps.-The use of "trading stamps" by which a merchant gives to each cash purchaser at his store of a given amount of goods a stamp which upon presentation by the purchaser to a third person entitles such purchaser to receive from such third person some other specific article of merchandise in addition to his purchase, which article is known and ascertained beforehand, is a legitimate business which the State has no power to prohibit in the exercise of its police power. 4. CONSTITUTIONAL LAW-Police Power-Lottery-Case at Bar.-In the case at bar the evidence shows that the element of chance or lottery, in the use of "trading stamps" in this instance, was entirely wanting, as the articles to be received were fixed and certain, and

Statement.

kept constantly on exhibition for inspection by persons proposing to take the "trading stamps."

5. CONSTITUTIONAL LAW-Presumption of Validity.—All laws are presumed to be constitutional, and not until the contrary is made plainly to appear will the courts declare them unconstitutional.

Error to a judgment of the Circuit Court of Clarke county, rendered May 20, 1903, affirming the judgment of the County Court of said county, whereby the plaintiff in error was fined the sum of ten dollars for violating the statute against the use of "trading stamps."

Reversed.

The facts, as stated in the brief of the plaintiff in error, were as follows:

"The Sperry & Hutchinson Company, the Trading Stamp Company referred to in the record, is incorporated under the laws of the State of New Jersey with a capital stock of $1,000,000 fully paid. The purposes for which it is incorporated, as set forth in its certificate of incorporation, are: To buy, sell and exchange merchandise; to do a general advertising business; to print, issue and circulate advertisements; to make and carry out contracts with corporations and individuals; to advertise their business by special and useful devices; to give merchandise in exchange for trading stamps, which trading stamps are to be redeemed bv it in merchandise according to its contracts, rules and regulations.

"Preliminary to engaging in business in any State, city or town, the Trading Stamp Company opens a store in said community and stocks it with certain well-defined standard articles of merchandise such as it can at all times undertake to carry on hand. These articles are all of substantial value, and, generally speaking, are such as may be useful and ornamental about the household.

"The Trading Stamp Company then solicits business with merchants in the community and enters into contracts with