Swift v. Com., 4725
| Decision Date | 14 October 1957 |
| Docket Number | No. 4725,4725 |
| Citation | 100 S.E.2d 9,199 Va. 420 |
| Parties | CLYDE SWIFT v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
William P. Sheffield, for the plaintiff in error.
John W. Knowles, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the Commonwealth.
This writ of error brings under review three judgments, entered in one trial on three separate verdicts finding Clyde Swift, the accused, guilty of selling, on May 1, 2 and 3, 1956, alcoholic beverages in violation of Code, § 4-58, and fixing his punishment at confinement in jail for 60 days and a fine of $100.00 on each charge.
There is no substantial conflict in the evidence, which may be summarized as follows: M. W. Prilliman and S. L. Simmons, investigators employed by the Virginia Alcoholic Beverage Control Board, went to Damascus, Washington county, Virginia, to investigate in that vicinity reports, or complaints, the Board had received of violations of the statute prohibiting the sale of alcoholic beverages. Immediately upon their arrival in Damascus, the two investigators informed Orville McNish, a deputy sheriff, of their identity and of their objective. During their four-day stay in Damascus they conferred daily with the deputy sheriff.
The investigators stayed at Sportsman Motel and posed as 'fishermen from West Virginia.' They obtained fishing licenses and donned fishing regalia. They inquired of Joe Colvin and Wilma Doss, two boys referred to as 'Joe' and 'Bud,' where they could buy whiskey. On May 1, 1956, the boys took the investigators to Clyde Swift's home where the four of them entered the kitchen and Simmons 'asked for some whiskey.' Swift asked the boys whether the two investigators were 'all right' and upon being assured they were, he went 'to a drawer in the kitchen' where several bottles of whiskey bearing A.B.C. stamps were stored, picked up a pint of 'Kentucky River' whiskey and sold it to Simmons for $3.00. Prilliman testified that there was more whiskey stacked up 'about two deep' in the drawer.
On May 2, 1956, at approximately 10:45 p.m., Simmons and Prilliman, accompanied by one of the boys, returned to Swift's home, on which occasion Simmons and the boy entered the house. Again they asked for whiskey and again Swift asked the local resident if he knew Simmons. Upon receiving an affirmative reply, Swift asked what brand was desired and brought out a pint of 'Crab Orchard' whiskey which he sold to Simmons for $3.00.
On May 3, 1956, the two investigators returned to Swift's home between 10:45 and 11:00 p.m., accompanied by 'Bud.' Prilliman and 'Bud' went to the back door of the house and asked Swift for some whiskey; Swift replied, 'all right,' and sold the investigator a pint of 'Tom Moore' whiskey for $3.00.
The accused did not take the stand in his own behalf, nor was either of the boys introduced as a witness by the Commonwealth or the accused.
The first contention of the accused is that the judgments are fatally defective because the Commonwealth failed to prove that he was not licensed to sell alcoholic beverages.
This contention is not supported by the record. Both Simmons and Prilliman testified, without objection, that the accused was not licensed to sell intoxicating beverages. When Prilliman was on the stand he was asked:
'The Court: Have you any objections, Mr. Sheffield?
'Mr. Sheffield [attorney for accused]: No, sir, Your Honor.'
The accused's second contention is that the trial court erred in permitting the investigators to testify, over his objection, that they had been sent to Damascus to investigate complaints made to the Virginia Alcoholic Beverage Control Board that he was selling whiskey unlawfully.
The record does not support this contention. Both Prilliman and Simmons testified that they were employed by the Virginia Alcoholic Beverage Control Board, and charged with the duty of investigating illegal sales of whiskey. Accused objected to that part of Prilliman's testimony that revealed he was sent to Damascus by his superiors to investigate complaints made to the Board of the illegal sale of alcoholic beverages in that area. Simmons' testimony to the same effect was admitted in evidence without objection. Neither investigator mentioned the name of the accused or any other person as being the subject of the complaints. This fact clearly distinguishes the case from the facts in Sturgis v. Commonwealth, 197 Va. 264, 88 S.E.2d 919, upon which the accused relies. In that case the trial court permitted the officer to testify that he had been informed that 'Purnell Sturgis [the defendant] was hauling some illegal whiskey in the vicinity of Painter,' in Accomack county. We held that such testimony was inadmissible and prejudicial because it informed the jury that the officer had been told by other persons that the defendant was, or had been, engaged in the very illegal act for which he was being tried.
The statements made by the investigators in the instant case merely show why they were in Damascus, and that they were posing as 'fishermen' in order to conceal from the general public their true identity. Under these circumstances the admission of this testimony is not reversible error. However, such testimony did not justify that part of the argument of the Commonwealth's Attorney to the jury wherein he said: ' But since no objection was made to this line of argument, the question is not properly before this Court for consideration.
The accused also contends that the 'Court erred in not, of its own motion, declaring a mistrial because of the improper remarks of the Commonwealth Attorney in referring to the defendant as a 'rat' and 'snake' and this was not cured by the subsequent remarks of the Court.'
This assignment of error is based on that part of the argument of the Commonwealth's Attorney wherein he said:
On the accused's objection to this argument, the court instructed the jury to disregard the statements of the Commonwealth's Attorney about rats and snakes, and to base their verdicts on the law and the evidence. The accused made no further objection to the argument and did not move the court to declare a mistrial. This...
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