Collins v. Commonwealth

123 Va. 815 | Va. | 1918

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.:-

The two assignments of error above noted raise the following points for decision, which will be disposed of in their order as stated below.

1. It is urged in behalf of the accused that his statement before the justice of the peace that “he wanted to plead guilty to the charge” was not a judicial confession, since it was not before a court competent to try the pending prosecution.

This position is well taken. Wharton’s Cr. Ev. (9th ed.),. sec. 638. Such statement, therefore, could not have- been relied on by the Commonwealth as conclusive of the guilt of the accused of the offenses charged in the warrant upon which he was brought before the justice of the peace. However, this did not render such statement of the accused inadmissible in evidence as an extra-judicial confession for the consideration of the jury upon the same charges contained in the indictment which were contained in the warrant. Idem. secs. 625-6, 631. Such evidence was not inadmissible merely because insufficient in itself to prove such charges. Idem. 632. . ;

2. It is alike urged that there is no evidence of the guilt of the accused of the transportation of whiskey other than his confession, before the officer who arrested him, of the related fact that the liquor which was taken in charge by the officer at the time of the arrest, was the whiskey of the accused, since the statement of the accused before the justice of the peace is not shown by the evidence to have been an admission by him of that precise crime; and it is urged that since guilt of the accused .cannot be established solely' by his confession, without the aid of other testimony, the verdict of the jury finding the accused guilty of transporting the whiskey, as well as of the selling thereof, should have been set aside as without sufficient evidence to support it. • .

It is true that in so far as the statement of the accused aforesaid before the justice of the peace is concerned, if must be considered as in itself alone insufficient evidence of a confession of the offense of the transportation of liquor charged in the indictment. Underhill on Cr. Ev. (1898) sec. 125, p. 160. In view of the number of the charges .in the warrant and the absence of evidence showing that the warrant was ever read to the accused or that he understood at the time he made such statement what all of such charges were, there was an absence of proof that in making such statement the accused intended to say that he wanted to plead guilty to all of such charges, the indication, indeed, from the language the accused used, that he wanted to plead guilty “ti9 'the charge,” being that he meant to say that he wanted to plead guilty to only one charge. There was the consequent uncertainty thus arising as to which charge in the warrant the accused thus indicated his guilt. It is also true that evidence as to confessions of parties is intrinsically weak and is inconclusive to establish a fact without the aid of other testimony (Homer v. Speed, 2 Pat. & H. 616), and in criminal cases the corpus delicti cannot be established by the confession of an accused person uncorroborated by other evidence. Wharton’s Cr. Ev. (9th ed.), sec. 633; Cochran’s Case, 94 S. E. 329; but in the instant case, the corpus delicti—the unlawful transportation of the whiskey—was proved by the direct testimony of the officer making’ the arrest, independently of the admission of the accused that “It was his whiskey.” Under the circumstances narrated in the testimony of such officer above quoted, the jury were warranted in drawing the inference of fact that such liquor was the same as that which the officer, saw being transported either on the back of the accused or on the back of the person who was with him, for the accused. Since the accused admitted that it was his liquor, it followed that the transportation -thereof, aforesaid, was either by him or by his agent in his presence and under his direction. Qui facit per alium, facit per se. Hence, the confession of such related fact—the ownership of the' whiskey —when considered by the jury in connection with the direct and independent testimony for the Commonwealth that such whiskey was being unlawfully tranported at the time of the arrest of the accused, and the other direct evidence aforesaid, was amply sufficient to support the verdict of the jury in finding the accused guilty of “transporting * * whiskey contrary to law.” The penalty imposed by the verdict did not exceed what they were authorized by the statute to impose for such offense and was indeed the minimum penalty for such offense. (See Acts Assem. 1916, p. 215.)

3. It is also urged in behalf of the accused that there was no evidence to support that portion of the verdict of the jury which found the accused guilty of “selling whiskey ' contrary to law.”

We are of opinion that this position is well taken. There is no evidence whatever in the instant case tending to show any selling of whiskey by the accused.

The Commonwealth relies upon the prima facie presumption raised by the possession by the accused of the whiskey in question under section 65 of said act, to sustain the verdict of the jury- in the particular now under consideration. The provision of such section of the statute thus relied on is as follows:

“The possession by any person, of any ardent spirits, at any place other than his home, except as provided in this act, and the possession in his home of more than one gallon of distilled liquor, one gallon of wine, or three gallons of beer, or other malt liquor, at any one time, shall, in any proceeding or prosecution under this act, be prima facie evidence that such person possesses such distilled liquors, wine and malt liquor for the purpose of sale.”

The prima facie presumption raised by such statute from the possession by any person of any ardent spirits at any place other than his home (which the evidence for the Commonwealth in the instant case showed was true of the accused), extends no further, however, than the presumption “that such person possesses such distilled liquor * * for the purpose of sale.” (Italics supplied). Pine & Scott v. Commonwealth, 93 S. E. 652. Such possession does not of itself furnish any evidence of any sale actually made,—it being prima facie evidence only of the contemplated selling thereof by such possessor of the liquor. Such possession, with such purpose, does, it is true, constitute in itself an offense under the statute, but it is not the offense of “selling” of which the accused was found guilty in the instant case. That portion of the verdict which included the additional offense of “selling” aforesaid, was, therefore, hot supported by any evidence, and the court below erred in declining to set aside such portion of the verdict. However, since the jury imposed no penalty, for such additional offense (they having imposed only a penalty which was the minimum penalty for the offense of transporting liquor covered by the verdict, as above stated), the accused suffered no hardship or ill-effect because of such additional offense being included in the verdict, and the error of the court below in that particular, was, therefore, harmless, and hence is not reversible error.

4.‘It is urged that the%record does not show for which offense mentioned in the verdict the fine and imprisonment were imposed—the offense of transporting, or that of selling the liquor—and, hence, that the verdict should have been set aside by the trial court, because the accused cannot plead the record in this casé as a bar to future prosecution.

The record of said verdict shows that the accused was convicted of both of the offenses last named. Such conviction was in effect an acquittal of all the other. offenses charged in the indictment. The plea of autrefois convict as to both of the former and the plea of autrefois acquit as to all of the latter offenses are made available to the accused by the record in the instant case.

For the foregoing reasons we find no error in the judgment complained of, and it will be affirmed.

Affirmed.