in the mistaken opinion that there could lawfully be, under these indictments, a conviction for malicious cutting. The atmosphere of the trial was thus necessarily charged with an erroneous view as to the character of the offense and the extent of the punishment. If the jury had imposed the minimum penalty prescribed by the statute for unlawful cutting, then we might well say that the error was harmless; but they did not do this as to either prisoner. It is true that the punishment actually imposed on Miss Costello brought her offense within the class of unlawful, but not malicious, assaults, and that the punishment actually imposed upon Hummer did not reach the maximum which the statute fixes for assaults of that character. Both verdicts might, however, have been legally rendered under an indictment charging malice (Montgomery's Case, 98 Va. 840, 843); and we cannot say that the jury was uninfluenced by the action of the court in permitting them to try the prisoners for malicious cutting instead of confining them to the charge of unlawful cutting as set out in the indictment. The seriousness of the charge and the range of the punishment may naturally and reasonably be expected to impress, in greater or less degree, the individual judgment and conscience of the jurors, and thus have some material effect upon the composite result of their deliberations as expressed in their verdict. The Commonwealth charged these defendants with an unlawful and felonious, but not with a malicious act. They had an absolute and constitutional right to be tried accordingly. They did nothing to waive this right, but upon the contrary did all in their power to preserve and enforce it. The decisions of this court in Mitchell's Case, 75 Va. 856, and Whitlock's Case, 89 Va. 337, are invoked on behalf of the Commonwealth, to meet the difficulty in the instant case. In Mitchell's Case the clerk's charge was erroneous as to the minimum penalty, but the jury fixed the maximum, and it was very properly held that the accused had not been prejudiced. In Whitlock's Case the charge was erroneous as to the maximum penalty, but the verdict was for the minimum, and it was held with equal propriety that the error was harmless. Neither of these cases are applicable here. The other errors assigned are not likely to arise at the next trial, except in so far as they involve the sufficiency of the evidence to warrant a conviction, and upon this question we express no opinion. The judgments complained of will be reversed, the verdicts of the jury set aside, and the causes remanded for a new trial to be had not in conflict with the views herein expressed. Reversed. KENNAN v. COMMONWEALTH. (Richmond, November 15, 1917.) 1. INTOXICATING LIQUORS-Prohibition Act-Indictment-Time of Offense. Where the indictment charged that the defendant did unlawfully give away ardent spirits within one year next prior to the finding of the indictment, which embraced a period of time anterior to November 1, 1916, after which date the prohibition act went into effect, and previous to which time it was not necessarily unlawful to give away ardent spirits: Held, that time was of the essence of the offense, and it was essential for the indictment to charge that the gift of ardent spirits imputed to the defendant occurred after the act became operative. When the indictment may be true and yet the defendant is not necessarily guilty of the offense charged, it is insufficient. Error to Circuit Court of Clarke county. Reversed. A. Moore, Jr., & Son, for the plaintiff in error. Attorney-General Jno. Garland Pollard, Assistant Attorney-General J. D. Hank, Jr., Leslie C. Garnett, and Leon M. Bazile, for the Commonwealth. WHITTLE, P.: At the January term, 1917, of the Circuit Court of Clarke county, the grand jury returned an indictment against the plaintiff in error, James Kennan, which, omitting the formal parts, was as follows: "That James Kennan within one year next prior to the finding of this indictment in the county of Clarke did unlawfully sell, give away, offer, dispense, expose, keep and store for sale, and give ardent spirits, and within said time did have in his possession in said county at the same time two quarts of whiskey against the peace and dignity of the Commonwealth of Virginia." The prosecution was had under the prohibition act, ch. 145, Acts 1916, p. 215, which became operative after November 1, 1916. The Commonwealth elected to try the accused on the charge that he "did within one year last past preceding the finding of the indictment unlawfully give away ardent spirits." Whereupon the defendant moved the court to quash the indictment, which motion was overruled, and to which action of the court overruling his motion the defendant duly excepted. On the trial of the case, upon the plea of not guilty, the jury found the defendant guilty and imposed upon him a fine of $50.00 and thirty days imprisonment in the county jail, and the court having overruled the defendant's motion to set aside the verdict and grant him a new trial on the ground that the verdict was without law to support it (which ruling was likewise made the subject of exception) proceeded to render judgment against defendant in accordance with the verdict. There are several assignments of error, but the only assignment which demands notice is to the action of the court overruling the defendant's motion to quash the indictment. It will be observed that the charge in the indictment that the defendant did unlawfully give away ardent spirits within one year next prior to the finding of the indictment, embraces a period of time anterior to November 1, 1916, after which date the prohibition act by its terms went into effect. Previous to that time it was not necessarily unlawful to give away ardent spirit. Therefore, in such case, time was of the essence of the offense; and it was essential for the indictment to charge that the gift of ardent spirits imputed to the defendant occurred after the act became operative, and not before that time, although within one year prior to the finding of the indictment. When the indictment may be true, and yet the defendant is not necessarily guilty of the offense charged, it is insuffiicent. Hampton's Case, 3 Gratt. (44 Va.) 562; Commonwealth v. Young, 15 Gratt. (56 Va.) 664; Byrd v. Commonwealth, 77 Va. 52; Cool v. Commonwealth, 94 Va. 799; White v. Commonwealth, 107 Va. 901; Wiseman v. Commonwealth, 117 Va. 906, 10 Va. App. 91; Blair v. Commonwealth, 14 Va. App. in which an opinion was handed down at the present term. The indictment in the present case is violative of the principle enunciated by the foregoing authorities, and ought to have been quashed. For these reasons the judgment must be reversed; and this court will enter such judgment as the circuit court ought to have rendered, quashing the indictment and discharging the plaintiff in error from further prosecution thereunder. Reversed. MCCLUNG v. FOLKES. 1. APPEAL AND ERROR-Evidence-Conflict-Demurrer. Where the evidence was conflicting, no exception was taken to the granting or refusing of instructions, and no objection is made in the appellate court to the ruling of the trial court on the admission or rejection of evidence, the plaintiff in error is in the appellate court as on a demurrer to the evidence, and if there is evidence to support the verdict and the court is unable to say from the record that manifest injustice has been done, the judgment upon the verdict will not be disturbed, although the court, if on the jury, may have found a different verdict. * 2. COSTS Code, sec. 3545.-The case at bar is controlled by section 3545, providing that "Except where it is otherwise provided, the party for whom final judgment is given in any action * whether he be plaintiff or defendant, shall recover his costs against the opposite party. Error to Circuit Court Court of Highland county. Affirmed. Jos. A. Glasgow and John M. Colaw, for the plaintiff in error. Curry & Curry, Timberlake & Nelson and Andrew L. Jones, for the defendant in error. BURKS, J.: C. C. Folkes was the owner of several tracts of land in Highland county, Virginia, and, desiring to correct uncertanties or mistakes in the boundaries thereof, applied to the circuit court of said county for an inclusive survey thereof. Code, sections 2337-2360. A caveat to prevent him from obtaining a new grant upon a re-survey of his lands was filed by L. M. McClung. Thereupon the court proceeded in a summary way, without pleadings, with the aid of a jury, to ascertain the material facts not agreed by the parties as provided by section 2330 of the Code. The jury was sworn to try the following issue agreed upon by the parties: "Has the plaintiff a better right than the defendant to the land mentioned in the plaintiff's caveat, or to any part of said land? If the jury finds that the plaintiff has a better right to the whole of said land they will say so. If the jury find the plaintiff has not the better right to the whole of said land, they will say so. If the jury find that the plaintiff has not the better right to the whole of the said land, but has the better right to a part of said land, they will say so and state in their verdict to what part of the land the plaintiff has such better right. If the jury find that the plaintiff has not the better right to said land, or any part of the same, they will say so." Upon the trial of this issue, the caveator, McClung, was the plaintiff, and the caveatee, Folkes, was the defendant. There were two trials and a mistrial of this issue, but for convenience we will speak of all of them as trials. At the first trial there was a verdict for the defendant, which the court set aside on the motion of the plaintiff, because contrary to the evidence, and the defendant excepted. At the |