148 Va. 745 | Va. | 1927
delivered the opinion of the court.
Robert Zimmerman was, on the 26th day of January, 1926, tried and convicted upon two indictments charging violations of the prohibition law. Iiidietment No. 1 charged Zimmerman with unlawfully and feloniously manufacturing ardent spirits. Indictment No. 2 charged him with manufacturing ardent spirits, and, at the time of such manufacture, that he did feloniously carry on his person, within 100 yards of the place where the ardent spirits were being feloniously manufactured, a firearm, to-wit, a pistol. By consent, the indictments were tried together.
On the first indictment, .the jury fixed the punishment at six months in jail and a fine of fifty dollars, and on the second indictment at six months in jail. Motion was made in each case to set aside the verdict as contrary to the law and the evidence, and to grant the accused a new trial, but the court overruled the motions, and entered judgments against the accused. These judgments are before this court for review upon writs of error duly awarded thereto, and are heard together here upon the single assignment of error, that the evidence is insufficient to support the verdict in each case.
A fair summary of the salient facts (and they are undisputed) is that on October 27, 1926, five officers
One paragraph of section 4675 (20) of the Virginia Code provides: “All persons found at a distillery where ardent spirits are being manufactured shall be deemed prima facie guilty of manufacturing the same or aiding and abetting in such manufacture, and upon conviction thereof shall be subject to the same penalties as if personally manufacturing the same.”
Under this section, the presence of the accused at the still where distilled ardent spirits were being manufactured, alone makes out a prima facie case of guilt of manufacturing distilled ardent spirits against the accused. This presumption may be rebutted, but the question as to whether it has been rebutted is usually one for the jury, especially where there is other incriminating evidence.
In the case of Messer v. Commonwealth, 145 Va. 838, 133 S. E. 761, the presumption of unlawful possession of ardent spirits arising from the finding of whiskey in the room occupied by the accused at a hotel was held to have been rebutted, as a matter of law, because the presence of the ardent spirits in his room was the only circumstance connecting him with the possession, and the presence of the liquor in the room was explained by the confession of a colored boy, who admitted he put it there without Messer’s knowledge, when he heard the officers coming.
The accused contends that in the instant case he has rebutted the presumption of guilt arising from his presence at the still, and that this case is controlled by the Messer Case and eases of like character.
The instant case is controlled by the cases of Johnson v. Commonwealth, 142 Va. 639, 128 S. E. 456, and Kilgore v. Commonwealth, 139 Va. 581, 123 S. E. 534. In the former case, Johnson, a colored man, and three white men, were arrested at a still. They all testified that Johnson had no interest in the still, and was only standing by looking on, and he testified that he was attracted to the still by curiosity, having seen smoke issuing from the woods. However, there were three incriminating circumstances, in addition to his presence, which in view of section 20, supra, of the prohibition act, this court held were sufficient to sustain the conviction. The court said: “In view of this section, and the testimony for the Commonwealth as to the position of the accused, and that he was looking sharply about the surrounding country'from time to time, first to the right and then to the left, as if he-were on the lookout, the flight of the accused and his bad reputation as a violator of the prohibition law, we are unable to say that the verdict of the jury was plainly wrong. The judgment of the trial court will be affirmed.”
It follows that if the accused was guilty of manufacturing ardent spirits, he was also necessarily guilty of having on his person a firearm, within 100 yards of the place where the ardent spirits were being manufactured.
No plea of “former jeopardy” having been filed (see DeBoer v. Commonwealth, 147 Va. 671, 137 S. E. 469), and no qeustion having been raised in the trial court, as required by Rule 22 of this court, under section 4775 of the Code, which provides that “if the same act be a violation of two or more statutes, * * conviction under one of such acts * * shall be a bar to a prosecution or proceeding under the other or others,” the judgment under indictment No. 2 will also be affirmed.
Affirmed.