Jones v. Commonwealth

| Va. | Jan 15, 1925

Sims, P.,

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

The sole question presented for decision by the assignments of error is the following:

1. Whether it should have appeared to the satisfaction of the court below from the evidence that the owner of the automobile, Herman W. Jones, “was ignorant of the illegal use to which the same was put, and that such illegal use was without his connivance or consent, express or implied?”

The question must be answered in the affirmative.

The illegal use in question consisted of the use of the automobile by the passenger, Hyde, as a means of transportation of the liquor by him. That illegal use is shown by the evidence. Thereupon, under the provisions of the statute, the burden of proof was upon the owner of the automobile to show to the satisfaction of the court that he was ignorant of such illegal use, ahd that it was without his connivance or consent.

However, this court held, in substance, in Mason v. Commonwealth, 137 Va. 819" court="Va." date_filed="1923-11-15" href="https://app.midpage.ai/document/mason-v-commonwealth-6815358?utm_source=webapp" opinion_id="6815358">137 Va. 819, 922-3, 120 S. E. 133, that while, under the provisions of the statute in question, the relief from the forfeiture rests largely in the discretion of the trial court, such discretion is reviewable, and that, while its exercise ought not to be interfered with on appeal, where the evidence is doubtful and unconvincing, it may be so interfered with “in reasonably clear eases,” when the appellate court “is satisfied that injustice has been done.”

All of the evidence in the instant case is set forth above and will not be repeated here. We deem it sufficient here to say that it appears to us from the evidence that the owner of the automobile has fully sustained the aforesaid burden of proof imposed upon him by the statute; that the evidence in his behalf is consistent in every particular with itself and with all of the facts and circumstances tended to be shown by the evidence for the Commonwealth; that such evidence is convincing in its character and seems to us to make out a clear case for relief from the forfeiture under the statute; so that we are satisfied from the evidence that injustice has been done by the forfeiture of the automobile.

The general reputation of the home in Portsmouth where the liquor was obtained by Hyde, “as being a place at which liquor could be procured,” was, of course, merely a local reputation, of which the owner, a resident of the city of Richmond, could not be inferred to have had any knowledge, especially in view of the fincontradieted testimony of the owner giving his very limited acquaintance with the localities in the city of Portsmouth.

If there had been any conflict or inconsistency anywhere in the testimony, by which the truth of the testimony in behalf of the owner was drawn in question, we would feel that we could not interfere with the decision of the trial court, since that court heard the witnesses testify and had the opportunity to observe their demeanor, respectively, and was thus in a better position than we could be to deduce the truth from conflicting testimony. But we find no conflict or inconsistency in the testimony which presents any question of credibility or noncredibility of the witnesses-.

Moreover, while it may not be so in all cases, where, as in the instant case, the owner of the automobile was himself in actual custody of it and was the driver of it, at the time it was being put to the illegal use by the passenger, Hyde, as a means of transportation of the liquor by him, it inheres in the very nature of the case that if the evidence was insufficient to show the innocence of the owner upon which the statute conditions his right to relief from the forfeiture of the automobile, that very evidence would have been sufficient to have war-ranted the inference of the guilt, and, hence, would have supported the conviction of the owner of the Offense of illegally transporting ardent spirits, or of aiding and assisting the passenger, Hyde, in the commission of such offense. Yet, upon the hearing in the court below, as appears from the record before us, and upon the same evidence, as we must assume from the record, the owner was acquitted of guilt of any such offense, and was plainly rightly so acquitted.

Tire ease must, therefore, be reversed; but precisely wha-t order shall be entered by this court is a question of some difficulty, in view of the situation presented by the record before us. It appears from such record that at the time the petition for the writ of error was presented, to-wit, on August 11, 1923, the automobile had been sold for the benefit of the Commonwealth by the city sergeant under and in accordance with the order of court, which forfeited it; such sale had been reported by him to the court; and the court had entered a further order-, on the 15th day of July, 1924, which, after reciting certain proceedings and that said rep,o,rt had been made by such officer, provided, so far as material, as follows: “* * and it appearing from said report that there is a balance of $393.50 after paying the expenses incident to the sale; and the said balance of $393.50 having been paid into court by the said (city sergeant), it is ordered that the clerk of this court deduct from and pay out of said sum of $393.50 the costs of this proceeding and all other legal charges lying against tbe said sum, and shall then deposit the balance in the Merchants and Farmers Bank of this city on interest to the credit of this proceeding and subject to the further order of the court; * *.” The petition prayed “that a writ of error, without supersedeas,” might be awarded. A writ of error, merely, was accordingly granted. The prayer of the petition is merely that the order of the court below which forfeited the automobile may be reviewed and reversed, and that the appellate court enter such judgment as to it shall seem right and proper.

There is no assignment of error touching the proceedings just above mentioned, which preceded the presentation of the petition for the writ of error. The court had jurisdiction to enter the judgment under review. Though erroneous it was not void but valid until reversed. Therefore, not having been superseded, it has been in full force and effect until now. Hence, we know of no relief we can give the owner of the automobile other than to remand the case with direction to the court below to direct the balance, which it ordered to be deposited in bank, by its order of July 15, 1924, aforesaid, to be paid over to the said owner, or to his attorney, if there has been no further order of such epurt making other disposition thereof. The case will therefore be reversed and such an order will be entered by this court.

In the oral argument before us, some doubt was suggested as to the validity of the concluding provision of the statute (section 57 above quoted), which is as follows: “* * provided, however, such * * innocent owner shall pay the costs incident to the capture and custody of such automobile * * and the trial of said-cause.” No authority was cited to sustain such suggestion, nor could he, as we think. It is settled that the legislature has ample power to provide for the forfeiture of property employed in violation of the laws of the State, although the owner thereof has no guilty knowledge whatever that it is being put to such use. Boggs’ Case, 76 Ya. 989, and Landers v. Commonwealth, 126 Va. 780" court="Va." date_filed="1919-11-20" href="https://app.midpage.ai/document/landers-v-commonwealth-6814264?utm_source=webapp" opinion_id="6814264">126 Va. 780, 101 S.E. 778" court="Ga. Ct. App." date_filed="1920-01-06" href="https://app.midpage.ai/document/city-of-warrenton-v-smith-5612032?utm_source=webapp" opinion_id="5612032">101 S. E. 778. Therefore, legislation giving relief even to an innocent owner from such forfeiture is purely a matter of grace, and it may attach such provisos or conditions thereto as it may prescribe and they will be valid. Hence, there can be no question but what the proviso of the statute just quoted is perfectly valid, as applied to all cases in which the evidence shows that the property was in fact put to the illegal use for which the statute has declared it shall be forfeited.

Reversed and remanded.