131 Va. 670 | Va. | 1921
delivered the opinion of the court.
Oliver, the plaintiff in error, was convicted of violating the prohibition law (Acts 1918-C 388) by having unlawful possession of, transporting, exposing for sale, and soliciting orders for ardent spirits, and sentenced to be confined in jail for thirty days and to pay a fine of $250.
There are a number of assignments of error, among them that the trial court erred in refusing to set aside the verdict for lack of evidence to support it. We are of opinion that this assignment of error is well taken. It will be unnecessary, therefore, to consider the other assignments.
Oliver and S. L. Chase were prohibition inspectors, and, amongst other things, were charged with the duty of destroying stills and apprehending persons engaged in violation of the prohibition law. On Saturday, October 18, 1919, after a successful week’s work in counties near Richmond, they discovered a still in Amelia, county on a tract of land of which Charles W. Venable was the tenant. Two men were found at the still, but they made their escape. Oliver and Chase, however, took possession of one five-gallon keg and three one-gallon jugs or bottles of whiskey, and of the still, loaded them into the Ford machine in which they were traveling, and carried them to the city of Richmond, to the office of the Prohibition Commissioner. Before leaving the farm they endeavored to find Venable, but he and his family were ■absent from home. A colored man, however, was there, who had been plowing for Venable that day, and Oliver left a note and also a verbal message for Venable saying that they had found a still and a five-gallon keg of whiskey and three one-gallon jugs of whiskey, and advising him to go to the courthouse in Amelia county and surrender himself to the attorney for the Commonwealth, or to come to the Prohibition Commissioner in the city of Richmond. This note appears to have been signed by Oliver in his own name and
' Evidence was also introduced by the Commonwealth to show that in September, 1919, the accused offered to sell F. D. Kelly, one or two cases of whiskey in pint bottles, and that in the latter part of September he offered to sell George W. Smith some whiskey known as “Four Roses.”
It should be said in respect to the offers to sell to Kelly and Smith that it appeared in the evidence-that on neither occasion did Oliver have any whiskey with him to sell, and that the offer was merely an effort to entrap these parties.
• Oliver and Chase had the undoubted right to take the whiskey along with them for safe-keeping while they were
The Attorney-General, after making a statement of the evidence offered on behalf of Oliver, concludes this branch of his argument as follows: “This is a fair summary of the evidence in this case. We are frank to say that the fact that before coming to Richmond, the accused left written evidence of his possession of the whiskey, and the fact that the Prohibition Commissioner investigated the matter after the arrest of the accused, yet kept the inspectors in his employ, all of which is undisputed, raises some question as to whether there was sufficient evidence to support the verdict that the accused was offering for sale ardent spirits. However, the jury passed upon this, and we do not feel that we can say that the verdict was without evidence to support it.”
It seems fairly plain that the only reason that the Attorney-General did not confess error was because the jury had found the prisoner guilty on the evidence and he did not think that under these circumstances he should confess error founded entirely on the testimony.
The evidence on behalf of the Commonwealth may be consistent with the guilt of the accused, but it is very far from being inconsistent with his innocence.
Upon the whole case, we are of opinion that the evidence was not sufficient to support the finding of the jury, and for this reason the verdict of the jury and the judgment of the hustings court will be set aside, and the case remanded to that court for a new trial, if the attorney for the Commonwealth shall be of opinion that he can make a better case on another trial than at the former hearing.
Reversed.