Dixon v. Commonwealth

• Citation: 173 S.E. 521
• Parties: DIXON . v. COMMONWEALTH.
• Decision Date: 22 March 1934
• Court: Supreme Court of Virginia

173 S.E. 521

DIXON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 22, 1934.

Error to Circuit Court, Warwick County.

A. L. Dixon was convicted of transporting liquor, and he brings error.

Reversed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

H. Rexford Taylor, of Newport News, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

HOLT, Justice.

On October 24, 1932, W. F. Lawson, sheriff of York county, and J. H. Charles, a pro hibition officer, who were in a car driven by Charles, chanced to be upon one of the public roads of Warwick county. Two cars passed them, one a Ford roadster driven by Cliff Turner, followed immediately by a Packard touring car driven by the defendant It was in the daytime, and the officers recognized Dixon. His reputation as an habitual violator of the prohibition law was bad, and so they followed him. These two cars ahead were driven for a short distance down the state highway and from it into an ordinary dirt county road. The officers followed and came upon them in a short time parked by the roadside and near each other. Both Dixon and Turner stood upon the ground, and Turner was in the act of handing out of his car to Dixon a bag in which was a five-gallon jug full of whisky. This was set down in the road and was there when the officers drove up. Dixon then got back into his car and drove rapidly away. In the Ford car were three other similar containers full of whisky.

There were two trials, one before a trial justice and the other before the circuit court of Warwick county. In that court a jury found the defendant guilty and fixed his punishment at six months' imprisonment in jail, to which was added a fine of $250. The trial court confirmed this verdict, sent him to the state convict road force, and directed that he be held there until fine and costs had been paid or discharged and until he gave a bond in the penalty of $3,000, conditioned for good behavior, etc.

Charles, the prohibition officer, testified both before the trial justice and before the circuit court of Warwick county. There are some discrepancies in his evidence given on these two occasions, but they are not material, and they went before the jury whose duty it was to sift and weigh them.

We need not undertake to discuss the burden which rests upon the commonwealth in criminal cases. The jury must be satisfied of the guilt of the accused beyond a reasonable doubt. Such a conclusion must be supported by credible evidence and cannot rest upon conjecture or suspicion. Triplett v. Commonwealth, 141 Va. 577, 127 S. E. 486.

In Wooden's Case, 117 Va. 930, 86 S. E. 305, 306, Ann. Cas. 1917D, 1032, Judge Cardwell held that "It is well settled by numerous cases that it is not sufficient to create a suspicion or probability of guilt but the evi-dence must go further and exclude every reasonable hypothesis except that of guilt' --that is to say, except that of guilt of the crime charged. This rule applies in full force to cases involving violation of the prohibition law, except where it is modified by statute. Spratley v. Commonwealth, 154 Va. 854, 152 S. E. 362. The failure of the accused to give any reasonable explanation of his conduct will not sustain a conviction, nor is evidence of ill repute enough. They are matters which the jury may and should consider. But after all they do not shift from the commonwealth the burden which ordinarily rests upon it. Willson v. Commonwealth, 160 Va. 913, 168 S. E. 344.

Dixon's explanation is not impressive. He said that he was testing out his car which had recently been repaired, and in doing this undertook to see if he could keep pace with the Ford which was going by at a rapid rate. He said that in doing this he came upon it standing in the road and so perforce had to stop. He further said that he unloaded no liquor from the Ford car and had nothing whatever to do with it. He further denied that he ran away.

The jury found him guilty of transportation. Manifestly he was not guilty of that offense. The whisky was not in his car, had never been in it, and was not being placed there when the officers came up. Transportation does not begin until the article has been delivered to or tendered to and accepted by the carrier.

It is true that positive proof of actual motion is not necessary to establish the crime of transportation within the meaning of the statute.

"The loading of the car for such transportation was a part of the illegal transportation, just as the unloading of a ear, at its point of destination, constitutes a part of the transportation." Chrysler Roadster v. Commonwealth, 152 Va. 508, 147 S. E. 243, 245. In that case the court told the jury:

"The court further instructs the jury that if any automobile is being used for the purpose of moving ardent spirits from one place to another that the transportation begins when the ardent spirits are loaded into the automobile and ends only when it is removed therefrom." To the same effect, see Seay v. Commonwealth, 152 Va. 982, 146 S. E. 198, 61 A. L. R. 997.

Although not guilty of transportation, it is possible that the accused was guilty of an attempt.

In Trent v. Commonwealth, 155 Va. 1128, 156 S....