154 Va. 879 | Va. | 1930
delivered the opinion of the court.
Harper Green Langford, at the July term of the Circuit Court of Charlotte county, was convicted of
The indictment contains two counts. In the first he is charged with the unlawful manufacture of ardent spirits and in the second with the possession without permit of a still. Each of these counts contains a^ charge of previous conviction.
The defendant moved to quash on the ground that his first conviction was on a blanket indictment; that the record of this conviction does not show the particular offense upon which it rests; that the law only imposes additional and different penalties for certain violations of the prohibition law when committed a second time, and that for these reasons it. is not possible to say, looking to the record alone, that the rules governing second conviction apply at all to the instant case. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.
By statute in Virginia any person who unlawfully manufactures distilled ardent spirits is guilty of a felony [Code, section 4675(5)]; and in the same section it is declared that any person who shall violate other provisions of designated sections shall be deemed guilty of a misdemeanor for the first offense and of a felony for any subsequent offense committed after the first conviction; and as an exception to the general rule thus stated it was futher provided that the offense of drinking, giving away or receiving ardent spirits should not be deemed a felony in any case, subject to certain further exceptions, and that the purchasing or having in possession of ardent spirits for personal use should in no case be deemed, a felony, all of which makes plain the necessity for setting out in detail the offense, for which the first conviction was had.
When we come to the second count the situation changes. The possession of a still is a misdemeanor, Code sections 4675(6), 4675(20), punishable by a fine of not less than $50.00 nor more than $500.00 and by confinement in jail not less than one nor more than six months, and in this subsection 6 it is provided that the penalty for any subsequent offense committed after the first conviction which is not declared to be a felony, shall be by a fine not exceeding $500.00 and by imprisonment in jail for not less than three nor more than twelve months. It was, therefore, proper in the second count to set out the first conviction which raised the offense from a simple to an aggravated misdemeanor carrying heavier penalties. The additional penalties apply to all second offenses not made felonies by the statute and apply in the instant case. When we are dealing with first convictions relied upon to support a charge of felony we find that there are certain exceptions; that not all first convictions will support such a charge and, therefore, that their character should be set out, but when we come to first convictions which aggravate the second offense and enlarge its punishment, as a misdemeanor only, we find that any previous conviction is sufficient unless it be one which makes the second offense a felony, and for that reason its details are not necessary. A very satisfactory discussion of the subject';of second
The motion to quash was general and since the-second count was good,- it should have been rejected even though the first contained prejudicial error. State v. Cartright, 20 W. Va. 32; Commonwealth v. Litton, 6 Gratt. (47 Va.) 691; 31 Corpus Juris, page 812.
Since no objection can be successfully urged against the second count, it follows that the court committed no error in permitting the introduction of a record showing a first conviction, although that record does not show the crime in detail upon which, it rests. If the first conviction did not make the second offense a felony, it increased its gravity even, though it remained a misdemeanor, and so this evidence was competent.
Does the evidence sufficiently support the verdict? The trial court thought it did and confirmed it by judgment. By statute it is provided, Code section 6363, that: “The judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong, or without evidence to support it.” Davis v. Commonwealth, 132 Va. 527, 110 S. E. 252; Nelson v. Commonwealth, 153 Va. 909, 150 S. E. 407. Of course the evidence relied upon must not strain the credulity of the court; in short, it must fairly sustain the verdict. Flannagan v. Northwestern Mutual Life Insurance Co., 152 Va. 38, 146 S. E. 353; Meade v. Saunders, 151 Va. 636, 144 S. E. 711.
On the day preceding the arrest, S. A. Jackson, a deputy sheriff, with a companion, went to see R. A. Langford about a matter of business not connected with this prosecution. Upon reaching Mr. Langford’s
The accused, testifying as to what occurred on this occasion, said that he took his car to wash it and when Jackson came was away because of some call of nature.
He did not, as a matter of fact, wash his car and so the jury was warranted in believing that he did not take it to this branch for that purpose and that on a material point his testimony did not conform to the facts.
On the day following, Jackson, another deputy sheriff, and two prohibition officers went back to this ford. Downstream 128 yards, not on Langford’s land but near it, they found a still being operated by A. J. Camp. Camp ran but was captured after a chase and about a mile away. The party then returned to the still site to await possible developments. After half an hour the defendant, leading a pair of mules, came down the road, tied them to a tree a little over 100 yards away, and started directly to the still itself. After going a short distance he whistled to signal his approach and one of the deputy sheriffs answered. With confidence so fortified, he continued to advance until he found himself under arrest.
Substantially the same account of what took place is given by the other officers. Mr. Robey, a deputy sheriff, said that while Camp was under arrest, and when the accused was coming towards the still, Camp raised his hands and tried to motion him back, and persisted in talking so loud when Langford was approaching that he threatened to shoot him unless he kept quiet.
Camp, himself, lived several miles from, where this still was and had left his automobile at Langford’s home on the day of the arrest. His evidence is that he took his ear to Langford’s to get a connecting rod for it and walked from there to the distillery.
Those found present at a still in operation are presumed to be guilty of manufacturing, Code section 4675(20); Zimmerman v. Commonwealth, 148 Va. 745, 138 S. E. 569. Of course this presumption is rebuttable. When it is overborne it is usually a question for the jury. Langford, at the time of his' arrest,- was-only twenty or twenty-five yards from the still and coming directly towards it.
We think that he was present within the purview of the statute, nor Was it necessary that he should have actually beea present on that particular day. Any day within the twelve months preceding his indictment was sufficient. Widgeon v. Commonwealth, 142 Va. 658, 128 S. E. 459.
The jury did not accept the evidence of the defendant, of his father, or of Camp, and they were not obliged to accept it, even when uneontradieted. Clopton’s Case, 109 Va. 813, 63 S. E. 1022; Boggs v. Commonwealth, 153 Va. 828, 149 S. E. 445, and authorities there cited. Camp may have been disinterested, but his conduct does not support that conclusion. He had already been convicted and so was beyond praise or blame. He had tried to protect Langford once and the jury may have believed that he was still anxious to help.
The jury reached the conclusion that the accused was guilty, the trial judge thought they were right, there is evidence to support their judgment, and it must stand affirmed.
Affirmed.
Hudgins, J., dissenting.