Sturgis v. Com.

• Decision Date: 14 September 1955
• Docket Number: No. 4407,4407
• Citation: Sturgis v. Com., 88 S.E.2d 919, 197 Va. 264 (1955)
• Parties: PURNELL STURGIS v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 919

88 S.E.2d 919

197 Va. 264

PURNELL STURGIS v. COMMONWEALTH OF VIRGINIA.

Record No. 4407.

Supreme Court of Appeals of Virginia

September 14, 1955.

William King Mapp, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and R. D. Mcllwaine, III, Assistant Attorney General, for the Commonwealth.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

This case is before us on a writ of error to a judgment entered upon a jury's verdict convicting Purnell Sturgis of the transportation of illegally acquired alcoholic beverages in violation of Code, § 4-75, ¹ and fixing his punishment at sixty days in jail. The assignments of error challenge the sufficiency of the evidence to sustain the verdict and the court's rulings on the admission of certain evidence.

On the night of June 27, 1954, Wayne J. Fincen, a member of the Virginia State Police, and Arthur B. Nicolls, a deputy sheriff, were patrolling the road leading from Painter to Mappsburg, in Accomack county, on the lookout for the defendant, Sturgis, who, according to their information, was engaged in the transportation of 'illegal whiskey.' Shortly after 9:00 o'clock the officers overtook the defendant in his car and ordered him to stop. The defendant obeyed this command, but before the officers reached his car he started it and left the scene at a high rate of speed. While pursuing the defendant along a hard-surfaced road at a rapid rate of speed the officers saw him throw from the car a bottle or jug which broke when it struck the pavement. Shortly thereafter the defendant pulled off the road, abandoned his car, and made his escape. The following day he voluntarily surrendered to the authorities.

Soon after the defendant had abandoned his car and escaped, Officer Fincen returned to the place where he and Nicolls had seen the object thrown from the car. There Fincen found pieces of a broken bottle, still wet, which he said 'reeked with the smell of bootleg whiskey. ' He also found on the pavement a spot, which he described as being 'twice as big' as a table in the courtroom, where the liquid had spilled on the pavement. By its odor, which Fincen described as being 'very strong,' he positively identified the liquid as 'bootleg whiskey.'

In a few minutes Nicolls, who had remained with the defendant's abandoned car, arrived and examined the scene where the container had broken on the pavement. Nicolls testified that for a number of years he had been employed by the State Alcoholic Beverage Control Board and had had 'much experience in dealing with alcoholic beverages -- Bootleg and otherwise. ' By its odor, he said, he 'knew' that the liquid which he found on the pavement was 'bootleg whiskey.' He found the neck of the broken container from which he was able to identify it as 'a gallon coca-cola jug.'

Both officers examined the broken pieces of the receptacle to determine whether it had carried 'any Federal stamps.' They found none.

The defendant admitted that he had been chased by the officers on the occasion and had successfully eluded them. He denied, however, that at the time he was transporting any intoxicating liquor or had thrown the container from the car as described by the officers. He said that he fled from the officers because he had had several drinks that evening and feared that they might detect the odor of whiskey on his breath and charge him with driving under the influence of liquor.

The pertinent part of Code, § 4-75, in effect at the time of the alleged offense, read thus:

'If any person, other than a common carrier, shall have, possess, keep, carry, ship or transport alcoholic beverages which have been illegally acquired by such person or any person for whom he is acting, he shall be guilty of a misdemeanor.

'Spirits in the possession of any person and in containers not bearing the required government stamps or seals shall be deemed for the purposes of this chapter to have been illegally acquired.'

To sustain its charge against the defendant under this section, the burden was on the Commonwealth to prove beyond a reasonable doubt that at the time in question he was (1) transporting alcoholic beverages, and (2) that they had been 'illegally acquired' by him. We are of opinion that the evidence was sufficient to warrant the finding that the prosecution had carried this burden.

It is undisputed that at the time the defendant was the sole occupant of the car. According to the testimony of the officers, while they were chasing him he threw from the car a container which broke and spilled on the pavement a liquid which they clearly and positively identified by its odor as being 'bootleg whiskey.' Hence, the evidence is sufficient to sustain a finding that the defendant was transporting an alcoholic beverage.

The second paragraph of Code, § 4-75, provides a rule of evidence for proof of illegal acquisition. (Miller v. Commonwealth, 172 Va. 639, 646, 2 S.E. (2d) 343, 346.) Under its terms, proof of possession 'in containers not bearing the required government stamps or seals shall be deemed * * * to have been illegally acquired' within the meaning of the section.

We are of opinion that the jury were warranted in finding from the testimony of the officers that the whiskey which the defendant had in his possession was in a container which bore no 'government stamps.' The whiskey was, therefore, persumed 'to have been illegally acquired.' While the...