Wampler v. Corp. Of Norton

• Decision Date: 21 September 1922
• Citation: 113 S.E. 733
• Parties: WAMPLER et al. v. CORPORATION OF NORTON.
• Court: Virginia Supreme Court

113 S.E. 733

WAMPLER et al.

v.CORPORATION OF NORTON.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

Error to Circuit Court, Wise County.

Edna Wampler and Henry Wampler were convicted of keeping ardent spirits for sale, and they bring error. Affirmed as to defendant Henry Wampler, and reversed as to defendant Edna Wampler.

D. F. Kennedy, of Wise, for plaintiffs in error.

John Roberts, of Norton, for defendant in error.

KELLY, P. Upon a warrant issued by the mayor of the corporation of Norton, jointly charging Henry Wampler and Edna Wampler, bis wife, with unlawfully keeping ardent spirits in store for sale, they were convicted in the mayor's court, and on appeal to the circuit court were again tried jointly, found guilty, and sentenced each to the payment of a fine of $500 and imprisonment in jail for a period of six months.

1. The principal assignment of error is that the court refused to set aside the verdict as being contrary to the law and the evidence.

The material facts shown in the evidence are as follows: The sheriff and two deputies, armed with a seareh warrant, went to the home of the defendant to search for ardent spirits. Henry Wampler was working at a store a few feet from the residence. His wife was temporarily absent, and had the key to the house, which was locked, but Wampler told them to go ahead and make the search. They found a quart jar under some tomato vines in the back yard, and another quart jar concealed in some weeds under the drip of the kitchen window. Both of these jars were partly filled with whisky. On entering the house through one of the windows, two of which were open, they found under the floor two more quart jars, one full and the other nearly full of whisky. There was no evidence tending to show who had hidden this whisky, or to whom it belonged, save only its presence on the premises of tbe defendants. Henry Wampler testified that he did not own it, did not even know any of it was on the place, and that a number of people, white and colored, lived near by who could have placed it in hiding there if they tried to do so. Edna Wampler testified that she owned the premises, but was "not boss, " that she did not own any of the whisky, and did not authorize any other person to put it there.

We are of opinion that the court was right in refusing to set aside the verdict as to Henry Wampler.

The case of Henderson v. Commonwealth, 130 Va. 761, 107 S. E. 700, relied upon by his counsel, is not in point. Both the statute and the facts involved therein are wholly different from the statute and the facts in this case.

The record, does not affirmatively show that the alleged offense was committed within the local jurisdiction of the mayor, but no mention or point whatever is made as to this omission of proof, either in the assignments of error or otherwise in the record as offered to us, and we shall treat this fact, not as waived, but as admitted, and shall deal with the case accordingly.

By section 28 of the state prohibition law (Acts 1918, p. 598; Code 1919, § 4618) it is provided that—

"Whenever ardent spirits shall be seized in any * * * place, searched under the provisions of this act, the finding of such ardent spirits * * * in any such place, shall be prima facie evidence of the unlawful manufacturing, selling, keeping and storing for sale, gift or use, by the person or persons occupying such premises * * * and the proprietor or other person in charge of the premises where such ardent spirits are found" shall be prosecuted therefor.

As to Henry Wampler the case is in all respects controlled by the decision of this court in Moore v. Commonwealth (Va.) 111 S. E. 127. In that case, as here, the whisky was found, not in the dwelling house, but concealed on the premises, and Judge Prentis, who delivered the opinion of the court, after quoting the statute above, said:

"It is clear then, under this statute, that the unexplained and uncontradicted facts which we have recited fully justify the conviction.

"The mere suggestion that some of the other occupants of the premises may have been also guilty may be true, but this does not warrant the acquittal of the accused. So to construe this statute would be to thwart its manifest design, to suppress the illicit traffic in ardent spirits, would under the evidence in this case result in the acquittal of all of such occupants and thereby give aid and comfort to all others who contemptuously disregard the law."

As to Mrs. Wampler, however, a different rule must be applied. It is true that she owned the property, but she was not "occupying the premises" in the sense of being the ...