Harris v. Commonwealth

• Decision Date: 08 January 1940
• Citation: 6 S.E.2d 678
• Parties: HARRIS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

6 S.E.2d 678

HARRIS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 8, 1940.

Rehearing Denied Feb. 28, 1940.

Error from Corporation Court of City of Lynchburg; Aubrey E. Strode, Judge.

Alvin Harris was convicted of an illegal sale of whisky, and he brings error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

R. I. Overbey, of Rustburg, for plaintiff in error.

Abram P. Staples, Atty. Gen., and G. Stanley Clarke, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

Alvin Harris was tried and convicted of an illegal sale of whiskey, sentenced to four months in jail, and fined $100.

In his petition for a writ of error to this court, he assigns two errors. The first is that the trial court erred in overruling his motion to set aside the verdict on the ground that the evidence was insufficient to sustain it, and the second is that the trial court erred in refusing to give an instruction requested by him.

It appears from the evidence that T. R. Hall, a regular employee of the Alcoholic Beverage Control Board on a salary basis, was seeking to apprehend violators of the Alcoholic Beverage Control law in Lynchburg and vicinity. On February 12, 1939, he employed two local persons, Russell Davidson and Norma Taylor, as informers to assist him in ascertaining violators of the law. Between six and seven p. m. on that day Hall, Davidson and Norma Taylor stopped at an old service station on the Old Forest road leading out of Lynchburg. Davidson asked Alvin Harris if he had any whiskey. Harris said that he did not, but, upon recognizing Davidson, he invited the three into the service station then used as a dwelling by Harris. He produced a pint of whiskey, and Davidson chipped some ice which seemed to have been convenient. Harris served Hall and each of his companions drinks in glasses. Hall took $2 out of his pocket and asked Harris how much he owed him, to which Harris replied that he would not take any money from him but that he could give the money to Davidson. Norma Taylor and Hall went out of the station. Hall stated that, while standing on the outside looking through a peephole in the glass door, he saw Davidson give Harris the $2 and receive some change from him. In a few minutes Davidson joined Hall and Norma Taylor in the car, and gave Hall 75 cents in change and the partly-filled bottle of whiskey. Hall immediately put an identifying label on the bottle, and later, while testifying, offered it as an exhibit before the jury.

The accused contends that Hall's testimony should be rejected as unworthy of belief. The vital issue in the case was whether the accused gave the whiskey to Hall and his companions, or whether he sold it to either of them. On this issue the evidence is in sharp conflict.

The accused admitted that he was engaged in no business; that he was driving a fine automobile but did not own it; that for two years he had been living in a building formerly used as a service station; and that he had had the glass in the entrance door painted, leaving a square peephole which enabled him from the inside to see anyone standing near the door on the outside; that on the evening in question he had served whiskey to two strangers and a mere acquaintance; and that after thethree had taken a drink Hall had offered to pay the accused; and, upon his refusal to accept the money, Hall had given $2 to Davidson and left the building. The accused denied that he accepted any money from Davidson, but admitted that Davidson had left the building with the whiskey in his possession. The accused claimed that he gave the whiskey to Davidson in return for a favor which Davidson had rendered him sometime the previous year.

Davidson's testimony is corroborative of the testimony of the accused. However, he admits that, when he joined Hall and Norma Taylor in the automobile, he gave Hall 75 cents in change and the bottle containing the whiskey; but he emphatically denies receiving the 75 cents from Harris.

Norma Taylor testified that she did not see Hall give any money to Davidson in the building, nor did she see Davidson give any change to Hall. She admitted that Davidson brought the bottle, partly filled with whiskey, into the automobile. She further said that Hall preceded her out of the room where they had been drinking, and that he did not pause to look through the peephole in the glass door.

H. B. Scruggs testified that he was in the room during the entire time that Hall and his companions were there, and that Hall did not give Harris or Davidson any money. On this point he contradicts Hall,...