156 Va. 971 | Va. | 1931
delivered the opinion of the court.
J. W. Spicer was indicted in the Circuit Court of Henrico county, under the “omnibus” statute, .for violation of the prohibition law. A bill of particulars was asked for and given, trial'was had in due course, and on April 22, 1930, this verdict was returned:
“We, the jury, find the defendant guilty of aiding and abetting in the sale of whiskey, and fix his punishment at three months in jail and $25.00 fine.”
On it judgment was entered, and that judgment is now before us on a writ of error.
But one complaint is made—it is said that the evidence is insufficient to convict.
In the brief filed on behalf of the Commonwealth appears this statement of facts:
“Officers went to the vicinity of the accused’s house. They lay in ambush and saw two men, W. K. Clayton and Percy Harris, go to the home of accused, drive their automobile into his back yard. Two men came out of the house and asked them what was wanted. The customers told them liquor. The men, one of whom was recognized as Raymond Milstead, then went a short distance across the road into a piece of woods, and off of the Spicer property, returning with whiskey. The
It is supported by the record. Clayton and Harris drove into Spicer’s back yard. Milstead and Winston came out of the house and asked them what they wanted and were told. Milstead and Winston then went across the road and into a piece of scrub woods, one or two hundred yards away from the Spicer house, where whiskey was concealed. They brought some back and sold it to Clayton and Harris. The place of concealment was not on Spicer’s land. Milstead and Winston were both afterwards convicted on a plea of guilty. Spicer’s premises were searched, but no liquor was found there, and there is no circumstance which connects him with this transaction except that the men who1 sold the liquor were in his home when the purchasers drove up, and it was to these men and not to Spicer that the purchasers made their wants known. By way of positive evidence, all that can be said is that his reputation is bad as a violator of our anti-liquor laws.
In all criminal cases the burden is upon the Commonwealth to prove the guilt of the accused to the exclusion of every reasonable hypothesis consistent with his innocence, and
The judgment is not sustained by evidence, and must be set aside.
Reversed.
Prentis, C. J., dissents.