Langford v. Commonwealth

• Decision Date: 12 June 1930
• Citation: 153 S.E. 821
• Parties: LANGFORD. v. COMMONWEALTH.
• Court: Virginia Supreme Court

153 S.E. 821

LANGFORD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 12, 1930.

The count was good, since possession of still is misdemeanor, and, under Code 1924, § 4675(6), penalty for any subsequent offense committed after first conviction, which is not declared to be a felony, is increased, and hence any previous conviction is sufficient unless it be one which makes second offense a felony.

The record of first conviction was admissible since, while it did not make second offense a felony, it increased its gravity under Code 1924, § 4675(6), even though it remained a misdemeanor.

[Ed. Note.—For other definitions of "Present; Presented; Presentation, " see Words and Phrases.]

Evidence disclosed that on day preceding arrest officers saw defendant in an out-of-way place coming from the direction in which the still was afterwards found, and that next day defendant returned to same place and was proceeding directly towards still only 20 or 25 yards away at time of his arrest.

HUDGINS, J., dissenting.

Error to Circuit Court, Charlotte County.

Harper Green Langford was convicted of violating the prohibition law, and he brings error.

Affirmed.

O. G. Kendig, of Drakes Branch, and N. S. Turnbull, Jr., of Victoria, for plaintiff in error.

John R. Saunders, Atty. Gen., Leon M. Bazile and Edwin H. Gibson, Asst. Attys. Gen., and Joel W. Flood, ' of Appomattox, for the Commonwealth.

HOLT, J.

Harper Green Langford, at the July term of the circuit court of Charlotte county, was convicted of violating the prohibition law. A jury fixed his punishment at four years' confinement in the penitentiary. That verdict was confirmed by the trial court, and its judgment is now before us on a writ of error.

The indictment contains two counts. In the first he is charged with the unlawful manufacture of ardent spirits, and in the second with the possession without permit of a still. Each of these counts contain a charge of previous conviction.

The defendant moved to quash on the ground that his first conviction was on a blanket indictment; that the record of this conviction does not show the particular offense upon which it rests; that the law only imposes additional and different penalties for certain violations of the prohibition law when committed a second time; and that for these reasons it is not possible to say looking to the record alone, that the rules governing second conviction apply at all to the instant case. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.

By statute in Virginia, any person who unlawfully manufactures distilled ardent spirits is guilty of a felony, Code, § 4675(5); and in the same section it is declared that any person who shall violate other provisions of designated sections shall be deemed guilty of a misdemeanor for the first offense and of a felony for any subsequent offense committed after the first conviction; and, as an exception to the general rule thus stated, it was further provided that the offense of drinking, giving away, or receiving ardent spirits should not be deemed a felony in any case, subject to certain further exceptions, and that the purchasing or having in possession of ardent spirits for personal use should in no case be deemed a felony—all of which makes plain the necessity for setting out in detail the offense for which the first conviction was had.

A prior conviction does not change or increase the penalty for manufacturing, which is a felony in itself, and, since this is true, there was no occasion for putting a charge of second conviction in the first count, and it should not have been done, but no harm followed, because it properly appeared in the second count and in that way and in orderly procedure came to the jury's attention.

When we come to the second count the situation changes. The possession of a still is a misdemeanor, Code §§ 4675(6), 4675(20), punishable by fine of not less than $50 nor more than $500, and by confinement in jail not less than one nor more than six months, and in this subsection 6 it is provided that the penalty for any subsequent offense committed after the first conviotion which is not declared to be a felony shall be by a fine not exceeding $500 and by imprisonment in jail for not less than three nor more than twelve months. It was therefore proper in the second count to set out the first conviction which raised the offense from a simple to an aggravated misdemeanor carrying heavier penalties. The additional penalties apply to all second offenses not made felonies by the statute and apply in the instant case. When we are dealing with first convictions relied upon to support a charge of felony we find that there are certain exceptions, that not all first convictions will support such a charge, and therefore that their character should be set out, but, when we come to first convictions which aggravate the second offense and enlarge its punishment, as a misdemeanor only, we find that any previous conviction is sufficient unless it be one which makes the second of-fense a felony, and for that reason its details are not necessary. A very satisfactory discussion of the subject of second conviction by Judge Chichester will be found in Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.

The motion to quash was general, and since the second count was good, it should have been rejected even though the first contained prejudicial error. State v. Cart-right, 20 W. Va. 32; Commonwealth v. Litton, 6 Grat. (47 Va.) 691; 31 Corpus Juris, p. 812.

Since no objection can be successfully urged against the second count, it follows that the court committed no error in permitting the introduction of a record showing a first conviction, although that record does not show the crime in detail upon which it rests. If the first conviction did not make the second offense a felony, it increased its gravity even though it remained a misdemeanor, and so this evidence was competent.

Does the evidence sufficiently support the verdict? The trial court thought it did, and confirmed it by judgment. By statute it is provided, Code § 6363, that "the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Davis v. Commonwealth, 132 Va. 527, 110 S. E. 252; Nelson v. Commonwealth (Va.) 150 S. E. 407. Of course the evidence relied upon must not strain the credulity of the court; in short, it must fairly sustain the verdict. Flannagan v. Northwestern Mutual Life Insurance Co., 152 Va. 38, 146 S. E. 353; Meade v. Saunders, 151 Va. 636, 144 S. E. 711.

On the day preceding the arrest, S. A. Jackson, a deputy sheriff, with a companion, went to see R. A.. Langford about a matter of business not connected with this prosecution. Upon reaching Mr. Langford's home they were told that he was not there, but had gone with one A. J. Camp to the home of R. G. Langford, father of the defendant. Jackson then set out for the R. G. Langford home, but, after traveling about six miles, bis car mired, and he had to get out and walk. Not being familiar with that locality, he followed a fresh car...