Seay v. Commonwealth

• Decision Date: 18 January 1923
• Docket Number: (Nos. 1, 2.)
• Parties: SEAY. v. COMMONWEALTH. DAY. v. SAME.
• Court: Virginia Supreme Court

115 S.E. 574

SEAY.

v.COMMONWEALTH.

DAY.

v.SAME.

(Nos. 1, 2.)

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Error to Circuit Court, Halifax County.

Leon Seay and P. H. Day were convicted of offenses, and they bring error. Affirmed.

The records in these two cases are identical, with the single exception of the accused being a different person in the respective cases and so named. They were tried under the second, third, fourth, and fifth counts of separate indictments, charging them, respectively, with unlawfully transporting ardent spirits in excess of one quart within a period of 30 days, (1) into this state, for use in this state, from a point without this state, to the county of Halifax; (2) from one point in this state to another point in this state, to the said county; (3) with unlawfully aiding each other in procuring ardent spirits in said county; and (4) with unlawfully having in possession in said county ardent spirits at a place not their home, to wit, 145 gallons on the public road near Clover in such county. There was a general verdict in each case finding the accused guilty and fixing their punishment, respectively, at a fine of $500 and six months' confinement in jail. The judgments under review were entered accordingly.

There was a motion to set aside the verdict and for a new trial in each case; but there are only two assignments of error relied upon as sustaining such motions, namely: One based on an alleged improper and prejudicial remark of the attorney for the commonwealth in his argument before the jury, allowed by the court over the objection of the accused; and the other based on the refusal of the court to give a certain instruction asked for by the accused.

So far as material, the remarks of the attorney for the commonwealth were as follows:

"The facts of this case are so absolutely conclusive that I am absolutely convinced that even the astute minds of the attorneys for the defense find nothing to rest a reasonable doubt on. I don't see how the facts can be argued any further. That is what I think. You will want to consider when you get to your room what amount of punishment should be meted out to this defendant. I stated in this court at the last term, and possibly as you were not here, 1 state it again. I have determined as far as my office is concerned that I shall ask for heavy penalties for violations of the prohibition law. This is the most flagrant violation Chat I have seen in the 305 days that have rolled around during the past year, and the most flagrant violation which we have tried for months and months. If a light penalty were inflicted with the hope that they would do better it would only give them another chance. It would be turning them loose to walk over the people in this county. Yet, he was even willing to kill a man to get away with 145 gallons of corn whisky. If the jury don't stand up and put a heavy sentence on him and their disapproval, the liquor trade will run away with us in Halifax county."

There was no evidence introduced or attempted to be introduced in the case on the subject of the remark that, "This is the most flagrant violation that I have seen in the 365 days that have rolled around during the past year, and the most flagrant violation which we have tried for months and months." But the record shows that there was ample evidence to sustain the positions taken by the attorney for the commonwealth in the other portions of his argument above quoted, to the effect that the accused were both guilty as charged in the indictments and were "willing to kill a man to get away with 145 gallons of corn whisky." The accused Seay, driving the automobile containing the liquor, turned and speeded up the car in an attempt to run over the officer who first attempted to stop the car and arrest him, from which the officer narrowly escaped with his life, as he testified as a witness for the commonwealth. Further, the evidence in the case discloses the additional flagrant features consisting of the flight and escape of the accused Seay with the car and its liquor contents, for some distance after his first resistance of arrest; his concealing the car off from the road; the taking of the liquor fromthe car and hiding it; his appearing at another locality when the officers in pursuit came along; his false swearing as to his identity. And the conduct and false swearing of the accused Day, as the jury were warranted in believing, were sufficient to show that he was particeps criminis with Seay and responsible as a coconspirator for what Seay did.

M. B. Booker, of Halifax, and John W. Carter, Jr., and Hugh T. Williams, both of Danville, for plaintiffs in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The questions involved will be disposed of in their order as stated below.

1. Did the action of the trial court in permitting the remark of the attorney for the commonwealth, to the effect that the offense of the accused was the most flagrant he had seen during the past year and the most flagrant he had tried for months and months, to go to the jury without any instruction of the court cautioning the jury that they were not to allow such remark to influence them in fixing the penalty which might be imposed by their verdict in the event they found the accused guilty, constitute reversible error?

The question must be answered in the negative.

The accused relies upon Jessie's Case, 112 Va. 803, 71 S. E. 612, Mullin's Case, 113 Va. 787, 75 S. E. 193, and McCoy's Case, 125 Va. 771. 99 S. E. 644, to sustain the position that it was reversible error for ...