131 Va. 752 | Va. | 1921
delivered the opinion of the court.
The defendant, Tony Hitt, was indicted for violation of the State prohibition act. The indictment was in the general blanket form suggested in section 7 of the act, and charged that Tony Hitt “* * * did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, transport, dispense, solicit, advertise and receive orders for ardent spirits, against the peace and dignity of the Commonwealth of Virginia.”
The verdict was in the following form: “We, the jury, find the accused, Tony Hitt, guilty as charged in the indictment, and fix his punishment at a fine of $50.00 with confinement in jail for one month.” The trial court sentenced the defendant acordingly, and to that sentence this writ of error was awarded.
Briefly stated, the material facts are these: Hitt lived at Elkton, in Rockingham county, about twenty miles from
We have omitted some of the details of the evidence, but have considered it all most carefully, and as we view the case no responsibility can be placed upon the defendant in so far as the suit case is concerned. He was in bad company, but he connot be convicted of a crime upon mere suspicion, and unless we resort to that we must treat the charge against him as if the bottle of whiskey above referred to contained the only ardent spirits in the car.
The question then is, whether the defendant could, by reason of his conduct with respect to the bottle, be lawfully convicted of any offense charged in the indictment under which he was tried.
It appears to be also conceded by the Attorney-General (though the trial court thought otherwise) that even if sec
These conclusions seem clear from the terms of the act, and are sustained by the decision of this court in Lane v. Commonwealth, 122 Va. 916, 95 S. E. 466.
The indictment does, however, charge the defendant with unlawfully transporting ardent spirits, and the real question in this case is whether under the evidence he can be held guilty of that charge.
This instruction left the jury no discretion, and was very probably the cause of the verdict. Whether so or not, the instruction was erroneous, and, furthermore, the verdict was without sufficient evidence to support it.
For the reasons indicated, the judgment complained of will be reversed, the verdict of the jury set aside, and the case remanded to the circuit court for such further proceedings as the Commonwealth may be advised to take therein, not inconsistent with the views herein expressed.
Reversed.