| Va. | Nov 18, 1926
Lead Opinion
delivered the opinion of the court.
The only evidence of this second violation offered by the Commonwealth was the testimony of the deputy sheriff who made the arrest, which was as follows: “That sometime during January, 1925, he went to the home of Peyton and Ida Mansfield, and upon entering the house there was present Ida Mansfield, Peyton Mansfield, her husband, sick in bed upstairs, Margaret Grant, a white woman, and that Ida Mansfield was attempting to break a pint bottle that contained liquor. That Ida Mansfield’s reputation was that she had the reputation of handling liquor.”
A justice of the peace testified that he issued a search warrant to the deputy sheriff, and that “Ida Mansfield had the reputation of handling liquor,” and the certificate of the evidence states that “it was further proven that Ida Mansfield had been convicted prior to this time of unlawful possession of liquor, and had also served a term in the penitentiary on conviction, in federal court, both of which she denied.” For what offense she was convicted in federal court does not appear. This was all of the evidence offered by the Commonwealth.
The defendant, in addition to her own testimony, proved by four witnesses who agree in all substantial particulars, that a white woman, Margaret Grant, came to the house of the defendant and brought with her a suit case containing three pints of liquor; that at the time the defendant was downstairs in her house and knew nothing about the liquor; that Margaret Grant placed the liquor in one of the table drawers in the rooms; that when the defendant came upstairs and
This testimony in ho wise conflicts with the testimony for the Commonwealth, and was not contradicted, directly or indirectly. The testimony for the Commonwealth is entirely consistent with the innocence of the defendant, and when this is true a verdict of guilty cannot stand.
While the jury had the power to convict, they had no right to do so. As said in Burton & Conquest v. Commonwealth, 108 Va. 892, 899, 62 S. E. 376: “Where a fact is equally susceptible of two interpretations, one of which is consistent with the innocence of the accused, they cannot arbitrarily adopt that interpretation which incriminates him.”
The verdict of the jury will have to be set aside for lack of evidence to support it.
Exception was taken to the ruling of the trial court in-refusing to permit the defendant to ask the deputy sheriff, on cross-examination, the following question: “Please state what compensation you received for making the arrest in this case, in event the defendant is convicted, in addition to the ordinary arrest for a misdemeanor or a felony.”
It is not claimed that any reward was offered, or that the deputy was to receive any compensation other than the fee allowed by the statute for making the arrest. There was no error in this ruling. The statute fixed the fee and no other evidence on that subject was needed. If the statutory fee was deemed to create a bias or interest in the deputy, it was a legitimate subject of comment without other evidence on the subject.
Exception was also taken to action of the trial court
“The court instructs the jury that if they believe from the evidence that at' the time of the arrest of the defendant that she and her husband, Peyton Mansfield, were living together as man and wife in their home and that liquor was found in their home, that the presumption of law is that the liquor belonged to the husband, and unless the Commonwealth shows beyond a reasonable doubt that the liquor belonged to the defendant, or that she had it in her possession, they must find her not guilty.”
There was no error in this ruling. There is no room for presumption where there is positive, affirmative evidence on the subject. The whole theory of the defense, based upon the most positive evidence, was that the liquor was the property of Margaret Grant, and that neither the defendant nor her husband had anything to do with it.
For the reasons hereinbefore stated, the judgment of the trial court will be reversed, the verdict of the jury set aside, and the case remanded to the trial court for a new trial, if the Commonwealth shall be so advised.
Reversed.
Dissenting Opinion
dissenting:
I cannot concur in the conclusion reached by Judge Burks in this case, for the following reasons:
The Commonwealth made out a prima facie case against the accused, Ida Mansfield — that is, it proved that as a result of a search of her premises, under a warrant issued for the purpose, the defendant was discovered with a pint bottle containing liquor which she attempted to break.
The question before this court is, whether this evidence, introduced by and on behalf of the accused, rebutted the prima facie case made out by the Commonwealth, as a matter of law, or whether this question, under the circumstances of this case, was one. for the jury.
Of course, the general proposition is conceded, that where evidence introduced by a defendant is perfectly consistent with the evidence introduced by the Commonwealth (and which has made out a prima facie case of guilt), -and fully explains the circumstances which raised the presumption, there can be no conviction. But if the evidence vouched in explanation is in conflict with the evidence for the Commonwealth, or if it falls short of fully or satisfactorily explaining the incriminating evidence or circumstances against the accused, as a matter of law, the question is one for the jury.
I think the instant case falls within this rule, not because there is any direct testimony which renders the evidence introduced on behalf of the accused an in-' complete or unsatisfactory explanation of the situation in which the accused was found when arrested, but
The opinion does not give any weight to those facts and circumstances. It ignores the undisputed fact that the accused had a bad reputation as a violator of the prohibition law, and had been previously convicted of violating it. It ignores the fact that although the defendant testified that Margaret Grant had brought the liquor to her house early in the morning of the day of the arrest, she only appears to have decided to get rid of it by breaking the bottle at the exact moment, the officers appeared to search her premises, a very pregnant coincidence to say the least. It ignores the fact that although at the "trial, all these witnesses testified that some person, by the name of Margaret Grant, brought the liquor to defendant’s house, it nowhere appears that Margaret Grant has ever acknowledged that she was the guilty party; has ever been indicted or tried for the offense, or that she is a fugitive from justice. It is not, of course, incumbent upon any one accused of crime to point out the guilty party, but when one seeks to exculpate himself from the throes of a prima facie case made out against him, by undertaking to point out the guilty party, he must do so in no uncertain way, if he expects a court to say as a matter of law that he has rebutted the presumption. If he falls short of doing this, it is a question for the jury to say whether the presumption has been rebutted and not one for the court.
If a presumption of guilt can be legally rebutted by the bare naming of a person as the perpetrator of the crime, an open door to immunity from punishment is offered to ¿11 persons accused of crime. It may be,
I therefore think the verdict of the jury should be upheld, and the judgment of the court affirmed.
West, J., concurs in this dissent.