136 Va. 769 | Va. | 1923
delivered the opinión of the court.
The accused has been convicted under an indictment charging him with unlawfully manufacturing ardent spirits, and is here assigning, among other errors, that the verdict should have been set aside because unsupported by the evidence.
Three witnesses were introduced by the Commonwealth. This is a summary of their testimony: The deputy sheriff, with two others, went to the home of the mother of the accused, in Scott county, where he and his half brother, Barney Farmer, also lived. The accused was not then seen there, but Barney Farmer was there and permitted the search of the house. Nothing incriminating was found at first, and they started to search the basement, during which search Farmer left the house, after which they went to the barn, about 150 yards from the dwelling, to continue their search. They followed Farmer’s tracks to the barn, and there, in one of the stalls, they found a furnace that was warm. There was smoke in the hallway of the barn, which had a row of stalls on each side. A still had just been pulled out of the furnace and there was a lighted lantern in the stall. They observed a trace of still slop leading out of the barn, which they followed, and found a still about 300 or 400 yards away; and returning they found two jugs and six gallons of whiskey, as well as some beer, in the stall. After having destroyed the beer, broken and emptied the jugs of whiskey, they returned to the house and then met the accused, who, when asked who had possession of the house' and premises, said that he and
The accused introduced Farmer, who testified that the still was his; that the accused had nothing to do with-it; had no interest in it; had never worked at it, or in any way assisted him; and denied that he had ever stated before the justice that he would take it all on himself, and said that there was no reason for him to do so because he stated to the justice that the still was his and that no one else had any interest in it. The accused, as a witness in his own behalf, denied all knowledge of the existence of the still, and testified that the place was his mother’s dower in his father’s land, upon which she, with his half brother, Farmer, and himself lived, but that one, Emory Ramey, rented the barn. That he went to the barn every day to feed and water his horse which he kept in another part of the barn.
This being all of the evidence, it is apparent to us that it is insufficient to support the verdict against the accused, unless the prima facie presumption of guilt created by section 28 of the prohibition act can be held to supply that insufficiency. Acts, 1918, page 599. Under this statute, the finding of ardent spirits on the premises is prima facie evidence of “unlawful manufacturing” of ardent spirits by the person or persons
Our conclusion, therefore, is that the trial court erred in refusing to set aside the verdict. This conclusion makes it unnecessary to consider the other errors which .are assigned.
The judgment will be reversed and the ease remanded for a new trial according to law, if the Commonwealth •shall be so advised.
Reversed.