Powers v. Commonwealth

• Citation: 182 Va. 669,30 S.E.2d 22
• Parties: POWERS. v. COMMONWEALTH.
• Decision Date: 01 May 1944
• Court: Supreme Court of Virginia

30 S.E.2d 22

182 Va. 669

POWERS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 1, 1944.

Error to Circuit Court, Dickenson County; Alfred A. Skeen, Judge.

Ashley Powers was convicted of unlawfully having in his possession illegally acquired whisky in excess of one gallon, and he brings error.

Reversed and remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

S. H. & Geo. C. Sutherland, of Clint-wood, for plaintiff in error.

Abram P. Staples, Atty. Gen, and M. Ray Doubles, Asst. Atty. Gen, for the Commonwealth.

SPRATLEY, Justice.

Ashley Powers was tried and convicted on a warrant charging that he did "unlawfully have in his possession illegally acquired whiskeys in excess of one gallon, * * *." A jury fixed his fine at $50, the minimum punishment therefor. He asks us to reverse the judgment entered thereon on the grounds that the court erred in the admission of evidence, in granting certain instructions, and in refusing to set aside the verdict of the jury, because it was not supported by the evidence and was contrary to the law and the evidence.

The evidence consists of the testimony of three officers of the Commonwealth and the whiskey seized by them. The defendant did not testify.

On September 18, 1943, L. T. Younce, an investigator for the Virginia Alcoholic Beverage Control Board, H. L. Lane, an employee in the division of enforcement of that board, and Jack Turner, a member of the State police force, searched the premises of a building located on a State highway in Dickenson county, Virginia. They found on the premises sixteen half-pint bottles and one quart bottle of whiskey bearing Kentucky stamps and two quart bottles of whiskey bearing tax stamps of the Virginia A.B.C. Board. U. S. Internal Revenue stamps were attached to each of the containers. The premises were located about eighteen miles from East Jenkins, Kentucky, where whiskey can be lawfully purchased.

There were present on the premises when the search was made Ashley Powers, the accused, and a woman named Effie Deel. Powers was arrested and the liquor seized.

The building had three rooms, a front room on the entire front, used as a confectionary store for the sale of candy, cigarettes, soft drinks, etc, a back room used as a bedroom, and a kitchen in the rear. In the last room there was a stove, frigidaire, and other kitchen furniture and a dresser-or folding bed. The sixteen half-pint bottles of whiskey, bearing unbroken Kentucky stamps, were found in the bedroom in a dresser drawer. The three quart bottles were found in the kitchen, in plain view, on top of the dresser or folding bed.

Over the defendant's objection that it was hearsay and opinion evidence, Younce was allowed to testify that he "understood the defendant runs the place and everybody says he runs the place. I know he is there and operates the place. I have been there two or three times before and he was there; but I can't say I ever saw him do anything around there."

On cross-examination, he stated that he never saw the defendant waiting on the trade or doing anything during the time or two he had bought cigarettes there; that a woman was in the kitchen where the whiskey was found, sweeping and at work, when the search was made; and that he did not know whether the woman was defendant's wife or was running the place.

Turner said that he lived in sight of the place four or five months early in the year 1943, and that he often saw the defendant waiting on the trade and he seemed to be in charge. He had also observed the presence of Effie Deel on the premises during all of that time. He further stated that on the day before the search at Pound, in Wise county, five miles from the Dickenson county line and nine miles from the premises searched, he looked in an automobile in which Ashley Powers and Effie Deel occupied the front seat, and found at their feet in the car twenty half-pints and two quarts of whiskey, bearing Kentucky stamps, and the same kind of whiskey as the sixteen half-pints and the one quart, bearing Kentucky stamps, seized in the search of the building.

Over the objection of the accused that the evidence was irrelevant, immaterial, prejudicial, and not a subject for expert testimony, Lane was permitted to testify that the sixteen half-pint bottles and one quart bottle of whiskey found in the house did not bear the stamps required under thelaw of Virginia, and that it appeared to him that the other two quart bottles, bearing Virginia A.B.C. Board stamps, had been tampered with by being loosened or taken off and pasted back several times.

The prosecution was based on the provisions of Virginia Code 1942 (Michie), section 4675 (50), ^* which we analyzed and construed in Sutherland v. Commonwealth, 171 Va. 485, 198 S.E. 452, and Miller v. Commonwealth, 172 Va. 639, 2 S.E.2d 343.

The Sutherland case, supra, hinged on proof of possession of unstamped ardent spirits found on premises occupied by more than one person. We held that the mere presence of the liquor on the premises of an owner or occupant was not sufficient, in the absence of statute, to overcome the presumption of the innocence of the defendant occupant.

The facts in Miller's case, supra, necessitated a consideration of the first three paragraphs of section 4675 (50). We there said that the first paragraph was a rule of substantive law dealing with the offense of unlawful possession, and that the second and third paragraphs declared a rule of evidence to establish proof of an essential element of the crime of possession, that is, the element of illegal acquisition, and that both proof of possession and proof of illegal acquisition were necessary to constitute the crime. The presumption of the second and third paragraphs of the statute were placed upon the same plane, each of them relating to the weight and value to be attached to evidence of the circumstances or situations specified. We accordingly held that, under the second paragraph of the section, the possession of ardent spirits not bearing the required government stamps or seals constituted a fact or circumstance creating a legal presumption, which, standing alone, unexplained or unrebutted, was sufficient to prove illegal acquisition.

The broad police powers of Virginia respecting the control, possession, and transportation of alcoholic beverages within its borders have been upheld recently by the Supreme Court of the United States in Carter et al. v. Commonwealth of Virginia, 321 U.S. 131, 64 S.Ct. 464, affirming Carter et al. v. Commonwealth of Virginia, 181 Va. 306, 24 S.E.2d 569, and Dickerson et al. v. Commonwealth of Virginia, 181 Va. 313, 24 S.E.2d 550.

The first question in this case is as to the admission of the evidence of the witness, Younce, that he "understood the defendant runs the place and everybody says he runs the place." The last clause of the statement was hearsay evidence, an extrajudicial statement, dependent upon the veracity and competency of some other person or persons. It lacked the sanctity of the oath and the test of the cross-examination of such person or persons.

As a general rule, hearsay evidence is inadmissible. The statement of Younce does not come within...