137 Va. 759 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court:
There are only three questions presented for our decision by the assignments of error, which will be disposed of in their order as stated below.
1. Was there sufficient evidence to support the . verdict in finding that the accused operated or assisted in the operation of the still?
The evidence upon the subject under consideration is wholly circumstantial, it is true. The officers testified that they did not recognize the accused as one of the persons they saw inside the house, and could not say that he was ever inside the house. However, it is obvious that the circumstantial evidence warranted the jury in drawing the inference that the accused was either one of the persons who was inside the cabin, presumably engaged in operating the still when the officers first approached, or was on guard outside while others were operating the still within the cabin, and was thus assisting in the operation of the still. In either case he was guilty as charged in the indictment and as found by the verdict.
2. Did the court err in refusing to give instruction No. 3' as asked?
The question must be answered in the negative.
This was not a case of the “mere presence of the defendant at the still.” There were the added circumstances of voices heard in the cabin, followed by the appearance of the accused coming around the outside of the house with a gun on his shoulder; the fact that only two persons were seen to leave the cabin, one of whom was the accused, and the similar manner in which both left, namely in flight; which circumstances warranted the inference, and the only reasonable inference to be drawn therefrom, that the accused either was one of the persons inside the house engaged in operating the still, or was on guard outside, and thus assisted in the operation of the still. Therefore, the instruction as asked was erroneous, in that it would, if given, have taken from the jury all consideration of such added circumstances, and have forbidden the jury to draw any inferences whatever therefrom.
3. Did the court err in refusing to give instruction No. 4 as asked?
The question must be answered in the negative.
This instruction contains an erroneous statement of the law, in that, in substance, it announces that the attempt to evade arrest by flight is no evidence whatever of guilt, under any circumstances. The correct doctrine on the subject is stated in Anderson's Case, 100 Va. 860, 863, 42 S. E. 865, cited with approval in Jenkins' Case, 132 Va. 692, 696, 111 S. E. 101, 103, as follows: “When a suspected person attempts to escape or evade a threatened prosecution * * though the inference” (of his guilt) “is by no means strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred. An attempt to escape or evade prosecution is not to be regarded as a part of the res gestae, but only as a circumstance to be considered by the jury along with other facts and circumstances tending to establish the guilt of the accused. The nearer, however, the commission of the crime committed, the more cogent would be the circumstance that the suspected person attempted to escape or evade prosecution; but it should be cautiously considered, because it may be attributed to a number of other reasons than consciousness of guilt.” Citing Wharton’s Cr. Ev., sections 750, 751. See also Williams’ Case, 85 Va. 607, 613, 8 S. E. 470.
The instruction in question is not in accord with, the holding of the cases just cited. Instruction No. 6, given by the court in lieu of the instruction in question, is, as far as it goes, in accord with such holding.
The case will be affirmed.
Affirmed.