Kelley v. Commonwealth

• Decision Date: 13 November 1924
• Citation: 125 S.E. 437
• Parties: KELLEY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

125 S.E. 437

KELLEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 13, 1924.

Error to Circuit Court, Alleghany County.

Mrs. E. M. Kelley, alias Mrs. Mack M. Kelley, was convicted of unlawfully storing ar-dent spirits for sale, and brings error. Affirmed.

The indictment, as returned by the grand jury, charged that the accused "did unlawfully and feloniously store for sale ardent spirits, " and also, in the same count, charged that, prior to said offense, the accused, at a certain term of the circuit court set forth, had "been convicted of a violation of section 3a of the prohibition laws of the state of Virginia."

Before the trial, the court below, over the objection of the accused, allowed the attorney for the commonwealth to amend the indictment by striking out the words "and feloniously, " and also the figure and letter "3a, " and to insert in lieu thereof the figures "17."

The accused thereupon moved for a continuance of the case, on the ground that the amendment of the indictment would necessitate evidence of witnesses as to the offense, for which there had been a prior conviction, which witnesses were not necessary under the original indictment, and which had not been summoned, and were not in attendance upon the court; but the court, stating, in substance, that it would not allow or receive any evidence of the prior conviction except the record of the court showing the prior trial and conviction, overruled the motion for a continuance, and, over the objection of the accused, proceeded with the trial.

Thereupon the accused pleaded not guilty, and the court chose a panel of 7 petit jurors found free from exception and duly qualified to try the accused, if he was charged by the indictment with a misdemeanor only. Whereupon the accused moved the court to quash said panel of 7 persons on the ground, in substance, that the accused, having been indicted by the grand jury for a felony, could not be tried by a petit jury; but the court overruled such motion, and proceeded with the trial of the accused with a petit jury of 5, chosen according to law from said panel of 7 persons.

Upon the conclusion of the trial the jury found the following verdict:

"We, the jury, find the defendant * * * guilty as charged in the indictment, and fix her punishment at 6 months in jail and $200 fine."

Whereupon the accused moved the court in arrest of judgment, which motion was overruled. The accused thereupon moved the court to set aside the verdict as contrary to the law and the evidence, which motion also the court overruled, and entered judgment in accordance with the verdict.

Of the evidence and the facts, as shown by the evidence, this only need be said:

When the dwelling house of the accused was searched by the officers, under a search warrant, over one gallon of ardent spirits was found to be therein at the time, at different places therein. There were four rooms in the house, including the kitchen, in three of which liquor was found. Some liquor was found in the kitchen, where the accused was in person when the officers entered, in a vessel setting in a corner opposite the table, in plain view of the accused. Some liquor was found on a table in the room next to the kitchen, in which there were two negroes discovered under such circumstances as to warrant the jury in inferring that they came to get liquor. A portion of the liquor in this room had been emptied out of a window while the officers were making their entry. A jar, dripping wet, which had evidently just been emptied of liquor, was found in a washstand in another room, and a box of 10 or 12 cans was found under the bed, which appeared to have had corn whisky in them.

The accused in her testimony denied all knowledge that the liquor was in the house until the officers came and found it there, and she testified that, after the officers found it, she asked Javins, a man in her employment at certain hours during the day, but who did not lodge there, how the liquor happened to be there, and that Javins then told her that "he found it in the woods, " and that she said to him, "What did you bring it in here for; don't you know that it will get you in trouble?" But the testimony for the commonwealth was to the effect that, when the officers confronted her with finding the liquor in her house, she told them, before she had any opportunity of seeing Javins after the arrival of the officers that Javins brought the liquor into the house; that "she seemed to know all about his bringing it there" at the time he brought it in; and that she told the officers that what she told Javins was "that he had better pour it out."

While the officers were searching the house, Javins and a son of the accused, 12 or 13 years old, were very busy pouring liquor out at different places.

Javins testified, it is true, that he brought the liquor into the house, and that the accused knew nothing of it until the search by the officers; but on cross-examination he testified that he knew nothing about a portion of the vessels which the officers testified they found, containing or as having recently contained liquor, and that he knew nothing of the box of cans above mentioned. Moreover, the testimony for the commonwealth was to the effect that Javins did and said nothing on the day of the search taking upon himself the responsibility for the presence of the liquor in the house.

Further: The testimony of the accused, of Javins, and of a Mrs. Walton, witnesses for the accused, were in direct conflict on several material points; and there was evidence for the commonwealth to the effect that the general reputation of the accused was that she was a violator of the prohibition law. There was also evidence for the accused to the effect that such reputation was to the contrary.

Other matters of evidence, and the action of the court thereon, assigned as error, are referred to in the opinion.

The court gave the following instructions:

"The court instructs the jury that, if they believe from the evidence beyond a reasonable doubt that, since the July term, 1923. of the circuit court of Alleghany county, the defendant. Mrs. Mack M. Kelley, stored ardent spirits for sale, or aided or assisted any other person in so doing, and if the jury further believe from the evidence beyond a reasonable doubt that the said Mrs. Mack M. Kelley is the same person who was convicted at the July term, 1923, of the circuit court of Alleghany county, as is shown by the record of the case of Commonwealth v. Mrs. Mack M. Kelley. and introduced in the evidence, then they should find the defendant guilty as charged in the indictment, and fix her punishment by confinement in jail for not less than 6 months nor more than 12 months, and by a fine of not less than $100 nor more than $5,000.

"The court instructs the jury that, when ardent spirits are found at any place searched under the provisions of the prohibition act, the finding of ardent spirits is prima facie evidence of the unlawful storing for sale by the person occupying the premises.

"The court instructs the jury that in this case, in arriving at their verdict as to whether Mrs. Kelley stored for sale ardent spirits since July term, 1923, of the circuit court of Alleghany county, they cannot take into consideration, and should not take into consideration, the fact that Mrs. Kelley has previously been convicted as a violator of the prohibition law, but that the jury can only consider this fact, after they shall have come to a conclusion on the question of whether she stored liquor for sale as charged in the indictment, in assessing the punishment therefor.

"The court instructs the jury that the law is that the defendant, Mrs. Kelley, is presumed to be innocent of the crime charged against her in this case, and that they cannot find her guilty in this case, unless the commonwealth proves her guilty beyond all reasonable doubt by reliable, trustworthy evidence, which the jury believes to be true beyond all reasonable doubt. And if the commonwealth fails to prove Mrs. Kelley guilty beyond all reasonable doubt by reliable, trustworthy evidence, then the court tells the jury that they shall find the defendant not guilty.

"Although the jury may believe, beyond a reasonable doubt, that liquor has been kept or stored for sale in Mrs. Kelley's house since the July term of this court, 1923, if they further believe that this was done without her knowledge or consent, and that she neither aided, abetted, encouraged, or assisted in the enterprise, they should find her not guilty.

"If the jury have a reasonable doubt from the evidence whether or not, since the July term, 1923, of this court, Mrs. Kelley has kept whisky for sale in her house, or aided, abetted, encouraged, or assisted any one else in so doing the jury should find her not guilty.

"The court further instructs the jury that the jury are the sole judges of the weight to be given the evidence, and of the credibility of the witnesses who testified, and in determining the weight to be given the evidence of the witnesses, and the credibility of the witnesses the jury may take into consideration the witnesses' demeanor on the witness stand, their manner of testifying, their motive, if any shown, for testifying as they do, and their interest, if any is shown, in the result of this trial. And the jury may take into consideration anything else affecting the credibility of the witnesses, and give such weight to their testimony as the jury believe it is entitled to.

"The court instructs the jury that, if they believe from the evidence that the defendant is a person whose general reputation for obeying the prohibition law is good, this is legal and competent evidence in her behalf, which they should take into consideration in arriving at their verdict, along with all the other evidence in the case."

The court refused to give certain instructions, which, so far as material, are set out in the opinion.

O. B. Harvey, of Clifton...