Looney v. Commonwealth

• Citation: 133 S.E. 753
• Parties: LOONEY . v. COMMONWEALTH.
• Decision Date: 24 June 1926
• Court: Supreme Court of Virginia

133 S.E. 753

LOONEY .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 24, 1926.

Error to Circuit Court, Buchanan County.

Tom Looney was convicted of unlawfully manufacturing ardent spirits, and he brings error. Reversed and remanded.

S. H. & Geo. C. Sutherland, of Clintwood, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

PRENTIS, P. The accused was' charged with unlawfully and feloniously manufacturing ardent spirits, has been convicted and sentenced to pay a fine of $5 and to six months' imprisonment. He moved the court to set aside the verdict because contrary to the law and the evidence. His motion was overruled, and this he assigns as error.

This is a fair summary of all of the evidence: The commonwealth proved by the witness Short that he, with the sheriff and two of the sheriff's deputies, searched the home and premises of the accused thoroughly. He found in a loft upstairs "some malt corn being dried." It had sprouted, but was about dry. There was a meat chopper in the smokehouse on which malt corn had been ground, and a half-gallon jar which smelled of whisky. About a half mile from the house (not on the premises but near the line) he found a place where there had been a still which had been recently used, but it was old and hard to tell just how long since, "and there was a hog sign around there." There were "two paths, one leading up the hill, back up the spur from the defendant's house, and another leading up the hill to the top of a hill where there is a haul road coming to the defendant's house." Another witness for the prosecution, a deputy sheriff, who was with Short, described these paths thus:

"There was some paths or roads looked old, which had been traveled. One went up the hill back opposite direction from the defendant's house, and another up to the head of the hollow where we struck a road which come around to the defendant's house." "When you come up the hollow from the still place to the road where you come out to the defendant's house, the roads run each way along the top of the ridge."

On cross-examination, after referring to the fact that the defendant had two sons living "up there, " but not quite so near to the place as the defendant, he said:

"You go up the hollow across the hill and down on what is known as Dry fork to one, and to the other you go from the top of the hill around the ridge, the opposite direction from the way you go to come to the defendant's house."

The sheriff, another witness for the prosecution, describes these roads thus:

"There was some paths going up a hillside back leading away from the defendant's house, and one coming around this way, and one going up the hollow."

Another deputy sheriff, in this connection, says this:

"We went back across the hill and found a furnace and some hog signs and paths leading in several directions."

Short and one of the deputies went back the next day and "searched the woods, fields, spurs, and hollows, carefully, " but "could not find any still, still cap, worm, fermenters. vessels to be used and which had been used for measuring or holding ardent spirits." They found some old still places which had not been used for a long time. He also stated that the malt corn which he found in the loft had not been used to manufacture whisky, that before it could be so used it had to be ground, and this had not been ground. He testified that he had talked to but few people "around where he lives, " but he thought he knew his general reputation as a violator of the prohibition laws, and that his reputation is that he is a good man, but deals in liquor and violates the liquor laws. On cross-examination, he said:

"The general reputation of nearly everybody up there in that neighborhood is that they are moonshiners and violators of the prohibition laws—I mean up around where the defendant lives, his sons and those people on Dry fork."

He also said that he saw some "slop" at the place where the furnace was and the still had been.

Another witness for the commonwealth, referring to the fruit jar which Short said smelled of whisky, said that they thought it had contained whisky, "but could not tell for sure, me and Mr. Short, " and later that he could not say that there had been liquor in it, that it smelled of whisky or like whisky. He calls the meat chopper a sausage grinder.

There was no contradiction of these facts, but the accused denied all knowledge of or interest in the still, showed that the place was not on his land but about 50 or 60 yards away. The wife of the defendant testified that the corn was crushed for chicken feed in her meat chopper, which was attached to a bench in front of her door, and had been so used, that, being hard to grind, she had soaked it to make it softer, and that, as some of it had sprouted and was about to sour, she had spread it out to dry to save it. Several witnesses testified that the defendant, for several months previously, worked hard and regularly every day at his sawmill. His home was between the place at which a still had been operated and his mill, which was in the opposite direction. Three witnesses, one of whom was a member of the board of supervisors, one a former sheriff of the county, and the other a justice of the peace, testified that his reputation for truth and veracity was good. This is all the evidence of significance; from which it appears that there is no conflict in the evidence.

That some person or persons had been operating a still at the place where the abandoned furnace was found is clear, but the guilty persons are not indicated. The many and diverging paths tend to dispel rather than to confirm the suspicion against the accused. Can it then be. fairly concluded therefrom that the presumption of innocence has been overcome, and that the guilt of the accused has been estabished? We think not. We of course recognize the fact that guilt is difficult to establish in such cases, and that the conclusions of juries upon circumstantial evidence are generally...