Guthrie v. Commonwealth

• Decision Date: 09 September 1938
• Court: Virginia Supreme Court
• Parties: CLARENCE GUTHRIE v. COMMONWEALTH OF VIRGINIA.

Page 461

171 Va. 461

CLARENCE GUTHRIE v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Staunton.

September 9, 1938.

Present, All the Justices.

1. ACCOMPLICES AND ACCESSORIES — Testimony of Accomplice — Weight and Sufficiency of Uncorroborated Testimony — Duty of Court to Warn Jury. — While the jury, as triers of fact, may, if they see proper to do so, convict upon the uncorroborated testimony of an accomplice alone, nevertheless, the evidence of an accomplice must be received and acted upon by the jury with great caution, and it is the duty of the court to warn the jury against the danger of convicting upon accomplices' uncorroborated testimony.

2. ACCOMPLICES AND ACCESSORIES — Testimony of Accomplice — Joint Principal in Misdemeanor. — In a strict sense, there are no accomplices in petty crimes such as misdemeanors, because the law, which de minimis non curat, or does not care about little things, will not descend to distinguish the different shades of guilt in petty offenses, but the same caution which is exercised in receiving the testimony of an accomplice is applied to the testimony of a joint principal.

3. ACCOMPLICES AND ACCESSORIES — Testimony of Accomplice — Reason for Rule Requiring Corroboration. — The reason for the rule requiring corroboration of accomplices is that the witness could otherwise transfer responsibility for a crime from his own shoulders to another's.

4. ACCOMPLICES AND ACCESSORIES — Testimony of Accomplice — Rule Requiring Corroboration Inapplicable to Police Officer. — If a police officer testifying in a criminal case, who would otherwise be an accomplice, has no motive in trying to shift the burden of criminal responsibility from himself to the defendant, the principle requiring corroboration of the testimony of an accomplice would not be applicable.

5. CRIMINAL LAW — Entrapment — Generation of Criminal Intent by Officer. — Officers of the law are not permitted to generate in the mind of a person, who is entirely innocent of any criminal purpose, the original intent to commit criminal acts which that person would not have committed or contemplated, except for such inducements, and convictions based upon such conduct will not be sustained.

6. INTOXICATING LIQUORS — Evidence — Uncorroborated Testimony of Officer Making Purchase — Case at Bar. — In the instant case, a prosecution under the Alcoholic Beverage Control Act, the only evidence for the Commonwealth consisted in the testimony of an inspector of the Alcoholic Beverage Control Board, who testified that he bought whiskey from accused and introduced a bottle of whiskey which he asserted he had purchased from accused.

Held: That the evidence of the officer was admissible and, if believed by the jury, was sufficient to sustain a conviction.

7. ACCOMPLICES AND ACCESSORIES — Who Are Accomplices — Test. — The general test to determine whether or not a witness is an accomplice is to determine whether he could be indicted for the same offense.

8. ACCOMPLICES AND ACCESSORIES — Who Are Accomplices — Test. — When a witness has made himself an agent for the prosecution before associating with the wrongdoers or before the actual perpetration of the offense, he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offense is committed.

9. INTOXICATING LIQUORS — Accomplices and Accessories — Officer Making Purchase "Feigned Accomplice." — An officer of the Alcoholic Beverage Control Board who ascertains that a person is equipped to make illegal sales of whiskey and buys whiskey from that person is a "feigned accomplice," who, when he acts strictly within the scope of his employment, is not an accomplice in the sense that his uncorroborated testimony will not support a conviction, nor in the sense that his testimony should be condemned as unworthy of belief by the trial judge by an instruction that the jury must act upon it with caution.

10. INTOXICATING LIQUORS — Instructions — That Officer Making Purchase Is Accomplice — Case at Bar. — In the instant case, a prosecution for violation of the Alcoholic Beverage Control Act, an inspector of the Alcoholic Beverage Control Board, the only witness for the Commonwealth, testified that he bought whiskey from accused, and accused assigned as error the refusal of the trial court to grant the following instruction: "The court instructs the jury that where there is an illegal sale of intoxicating liquors the purchaser is an accomplice of the seller; and the court further tells the jury while they may find a verdict upon the unsupported testimony of an accomplice, such evidence is to be received with great caution, and the court in this case warns the jury of the danger of basing a verdict on the unsupported testimony of an accomplice."

Held: No error.

Error to a judgment of the Circuit Court of Bedford county. Hon. A. H. Hopkins, Judge presiding.

The opinion states the case.

Lowry & Burks and William W. Berry, Jr., for the plaintiff in error.

Abram P. Staples, Attorney-General, and Walter E. Rogers, Special Assistant, for the Commonwealth.

HUDGINS, J., delivered the opinion of the court.

Clarence Guthrie was convicted of an unlawful sale of whiskey, and sentenced to jail for a term of six months and fined $50.

The only evidence for the Commonwealth consists of the testimony of one witness, W. E. Dalton, who testified that he had been employed as an inspector by the Alcoholic Beverage Control Board since January 1, 1937; that on February 19, 1937, while driving from Montvale to the town of Bedford, he "picked up" a Negro boy who informed him that whiskey could be purchased in Bedford. On arrival in the town, the boy directed and went with the witness to the home of the accused, where the witness purchased from the accused a pint, and two drinks served in glasses. He paid fifty cents for the pint, and ten cents each for the drinks. At the home of the accused he saw two white men on the porch, talking and drinking. When he left, they were still there. The witness took the pint bottle to Amherst and labeled it for the purpose of using it as evidence against the accused. No adequate description was given of the Negro boy or the two white men.

The evidence for the accused, and the corroborating circumstances as detailed by his witnesses, if believed by the jury, would have fully supported a verdict of acquittal.

The only error assigned is the refusal of the trial court to give, as requested by the accused, the following instruction:

"The court instructs the jury that where there is an illegal sale of intoxicating liquors the purchaser is an accomplice of the seller; and the court further tells the jury while they may find a verdict upon the unsupported testimony of an accomplice, such evidence is to be received with great caution, and the court in this case warns the jury of the danger of basing a verdict on the unsupported testimony of an accomplice."

Under the Layman Act, which did not, in express terms, make the purchase of intoxicating liquors a crime, this court held that the purchaser of liquor sold illegally was an accomplice of the seller. Crosby Commonwealth, 132 Va. 518, 110 S.E. 270; Faulkner South Boston, 139 Va. 569, 132 S.E. 358. However, in each of these cases, it was held that the refusal of the trial court to give a similar instruction was not error, because the records showed that the testimony of the purchaser was corroborated. Under the provisions of section 49 of the Alcoholic Beverage Control Act, Code 1936, section 4675(49), the purchaser of alcoholic beverages from anyone other than a party duly licensed to sell is guilty of a misdemeanor.

The vital question presented is whether an officer, who, for the purpose of obtaining evidence, buys intoxicating beverages from a person not authorized to sell, is an accomplice in the sense that it is the duty of the trial court to instruct the jury to act upon his uncorroborated testimony with caution.

The present rule applicable to the testimony of an accomplice originated in the ancient doctrine of "approvement"; that is, where a person indicted for treason or any other felony confessed the fact before pleading, and, for the purpose of obtaining his own freedom, made accusation against others, his accomplices in the commission of the crime. If the persons implicated were convicted, the "approver" received his pardon; if they were acquitted, the "approver" was hanged. IV Blackstone Com. 330, 331; Whiskey Cases, 99 U.S. 594, 599, 25 L.Ed. 399. Later, the English decisions dealt with the admissibility of the testimony of accomplices and not with the question of its weight.

Out of the rule of complete immunity arose the dangerous possibility that an accomplice would falsely accuse others in order to avoid his own penalty. The credibility of such testimony was the subject of comment by the judge in the exercise of his common law function of advising the jury on the weight of all the evidence. This well-established rule of practice has become virtually the equivalent of a rule of law by which judges warn juries that it is dangerous to convict a person on such evidence when it is uncorroborated. Halsbury's Laws of England (2d Ed.), Vol. 9, p. 222.

In many states the question is now controlled by statu...