Trent v. Commonwealth
| Decision Date | 27 January 1931 |
| Court | Virginia Supreme Court |
| Parties | W. B. TRENT v. COMMONWEALTH. |
Present, Campbell, Holt, Epes, Gregory and Hudgins, JJ.
1. INTOXICATING LIQUORS — Prima Facie Presumption from Presence at Still — Court and Jury Refusing to Accept Accused's Explanation of Presence — Case at Bar. — The instant case was an indictment for manufacturing ardent spirits. Accused attempted to explain his presence at the still by saying that he was aiding a prohibition officer in securing evidence. This prohibition officer testified that accused had assisted him in other cases and that he had told him that there was a still where that captured was found, and had told him to investigate the matter. There were facts in evidence tending to discredit the story of accused. No one of these facts, nor all of them combined, were sufficient to have made the jury of necessity discredit his defense, but they were sufficient to throw doubt upon his explanation. The jury did not believe him and they were supported in this conclusion by the trial judge.
Held: That there was no error in the jury's conclusion that the prima facie presumption of guilt, following one's presence at a still, had not been overcome.
2. INTOXICATING LIQUORS — Manufacturing a Continuing Process - Liquor not Produced — Case at Bar. — In the instant case the indictment charged that intoxicants were being manufactured and accused contended that such was not the case, as no liquor was actually produced. Manufacturing, however, is a continuing process and the State is not obliged to wait until it is completed before proceeding to punish those who in this manner violate its laws, nor to concede that only a misdemeanor has been committed up to the moment when alcohol actually begins to flow.
3. INTOXICATING LIQUORS — Words and Phrases — Manufacture. — To manufacture, within the purview of the prohibition law, means not only to produce or create, but covers as well the active efforts and the means employed in making the prohibited liquor.
4. INTOXICATING LIQUORS — Attempts. — Section 4 of the prohibition act, Acts 1924, page 593, Code of 1930, section 4675(4), provides that on an indictment for violation of any provisions of the act, the jury may find the defendant guilty of an attempt, and the punishment shall be the same as if the defendant were solely guilty. Thus, into each indictment charging unlawful manufacture of intoxicants the statute writes the charge of an attempt, and the consummated crime and the attempt by statute stand upon exactly the same footing and the punishment in each instance is the same.
5. ATTEMPTS AND SOLICITATION TO COMMIT CRIME — Suitability of Instrumentalities Adopted. — The doctrine of attempts is full of subtleties. It is sufficient to say that if the instrumentalities adopted were apparently suitable for the consummation of the crime, that is enough. If they were manifestly insufficient, then the prosecution is at an end. This consummation must not be inherently impossible and the impossibility must not be due to some extraneous fact not within the knowledge or control of the accused.
6. INTOXICATING LIQUORS — Attempt to Manufacture — Necessity for "Worm." — In the instant case it was contended that the evidence did not sustain a conviction for attempt to manufacture ardent spirits, as it was impossible to carry out the processes of distillation without a "worm" and no "worm" was found. The accused and his associates must have been intimately familiar with the essentials of the manufacture of ardent spirits and went about it in a business-like way; that they did not know that a "worm" was essential is incredible.
Held: That the conclusion was inevitable that the "worm" was where it was immediately available, perhaps hidden in the nearby woods. Impossibility of performance arose not out of the absence of a "worm," but out of the intervention of the officers.
7. APPEAL AND ERROR — Rule XXII of the Supreme Court of Appeals — Assignment of Error — Objections to Instructions — Case at Bar. — In the instant case the assignments of error dealing with instructions stated that the court having fully heard argument upon the instructions gave instructions numbered 1 to 5 for the Commonwealth, to which instructions defendant objected, fully stating his reasons to the court, and the court gave instructions A, B and C offered by the defendant and refused to give instructions D and E, to which action of the court defendant excepted, fully stating his reasons.
Held: That under Rule XXII of the Supreme Court of Appeals this assignment of error could not be considered, as the court could not possibly know what reasons were assigned in the court below when these exceptions were taken.
Error to a judgment of the Circuit Court of Buckingham county.
The opinion states the case.
A. L. Pitts, Jr., and Hubard & Boatwright, for the plaintiff in error.
John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.
From the evidence it appears that some of the officers of Buckingham county had reason to suspect that a still was being operated there, and in April, 1929, went to look for it. They found a boiler set up and some mash prepared. This was about ten o'clock at night. The still was not in operation and no one was seen near it. These officers hid themselves and remained on watch till about ten o'clock next morning when the accused, a negro, and two white men appeared. Each of them was carrying certain articles. Trent had a bag filled with empty fruit jars which he put down some distance from the still. They built a fire under the boiler and were busy about it when one of the officers unwittingly gave an alarm. All ran. Trent and a white man named Stinson were captured. The other fugitive got away. A search about the place was then made, but no still worm was found.
In due course an indictment followed. It contained two counts. One charges the unlawful manufacture of ardent spirits, and the other the unlawful possession of a still, still cap, etc. It is with a verdict based upon the first count alone that we are now concerned.
The verdict was: "We, the jury, find the accused guilty as charged in the first count of the indictment and fix his punishment at six months in jail and a fine of $25.00."
This is the testimony as to what occured at the time of the arrest:
R. G. Garnett, a county officer, testified that when the presence of the officers became known all of the men at the still ran. Trent and Stinson were caught, but the third man got away. As the accused and his companion approached the still "they laid down what they were carrying on their backs and got up a turn of wood apiece, and began stirring about the place, and some of them started a fire under the boiler." After the arrest,
Herbert Goodman, another officer, said "that the officers stayed concealed until about ten next day when two men approached the still; that they came from the opposite side from where witness was hid and that in the woods and bushes he did not see but two, but Trent put down the bag and picked up sticks of wood and carried them to the still and they soon had a fire."
R. E. Newton, town sergeant of Dillwyn, saw Trent and two white men go to the still. "Trent had a sack on his back, but that he did not carry it to the still, but laid it down on the path some distance from the still; that some of the men, he could not see which one as he was seventy-five or one hundred yards away, started a fire at the still."
The accused testified on his own behalf. He said "that on the morning when the raid was made a man whom he did not know met him and Stinson in path on and told him that he wanted him to go down in the woods with him a little way to help carry some bundles that he had in a sack and that he and Stinson went down there; he carried the sack that the white man had, and down in the woods they picked up two more sacks with glass jars in them, there being a case of glass jars in the sack which he carried; that when they approached the still the man told him what was done there in the bottom and he would not carry the jars down to the still but set them down on the side of the path where he was and went on down to the still and sat down on a barrel; that before they had been there but a few minutes one of the officers fired a shot and all of them ran. That the white man that he went down there with said that he was to be met there by some other parties and that as he did not find them there he gathered up some leaves and sticks and made a little fire "just to let the other boys know I have been here."
"That witness (Trent) took no part in the operation in any shape or form and had nothing to do with the still; that he knew that a bunch of men, five or six, from Powhatan county, were operating a still in that vicinity, but he did not know the names; that he had seen the man he went down there with before, but he did not know who he was except that his first name was Percy."
He further stated that he had on other occasions aided officers in securing evidence against violators of the prohibition laws, and had been requested by Mr. Hughes, a State prohibition inspector, to keep him informed of such unlawful activities as might come to his attention; that his presence at the still on this occasion was for the purpose of securing such evidence, and that he...
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