Whitaker v. Commonwealth

• Decision Date: 10 March 1938
• Citation: 195 S.E. 486
• Court: Virginia Supreme Court
• Parties: WHITAKER. v. COMMONWEALTH.

195 S.E. 486

WHITAKER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 10, 1938.

Error to Circuit Court, Tazewell County; A. C. Buchanan, Judge.

Bill Whitaker was convicted of the unlawful possession of liquor, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

G. R. Brittain and John W. Gillespie, both of Tazewell, for plaintiff in error.

Abram P. Staples, Atty. Gen., G. Stanley Clarke, Asst. Atty. Gen., and Ralph H. Ferrell, Jr., of Richmond, for the Commonwealth.

GREGORY, Justice.

Bill Whitaker obtained a writ of error to a judgment of conviction under Code, § 4675(50), whereby he was sentenced to serve six months in jail and pay a fine of $250.

On March 18, 1937, police officers of Tazewell county, together with officers of the Virginia Alcoholic Beverage Control Board, investigated his premises under a search warrant and found twelve cases of whisky stored in a Terraplane coupe. Ten cases were in the rear compartment, and two cases, from which 14 or 15 pints had been removed, were found behind the front seat. The whisky bore both federal and Kentucky stamps, but there were no stamps indicating that it had been purchased from a Virginia Alcoholic Beverage Control store or a Virginia licensed druggist. The title to the car in which the whisky was stored was in the name of William Whitaker and Fannie Jane Whitaker, who was either his wife or his daughter. The car was locked in a shed on Bill Whitaker's premises.

At first the accused refused to open the car. He denied that he owned it, but when the officers threatened to break the lock he sent to his filling station for the keys.

Whitaker had upon previous occasions violated the Virginia Alcoholic Beverage Control Act. On this occasion he told the officers that the whisky was being transported from Kentucky to Florida; that he had the right to transport it; and there was a permit on each case. At the time he made these statements, according to the testimony of Newt Harman who claimed to have actually transported the whisky, the accused had no previous knowledge that the whisky was stored in his (the accused's) car.

The accused seeks to escape the penalty of the statute by claiming that the whisky was being transported in interstate commerce. He has no other defense, and the entire evidence in his behalf consists of the testimony of his nephew, Newt Harman.

Newt Harman said that he purchased the whisky in Kentucky for his Florida employer, and that he decided to visit relatives in War, W. Va., before returning to Florida. He said that his car had been giving him trouble and upon reaching the accused's filling station he decided to leave the whisky, go on to War, W. Va., have his car overhauled, and pick up the whisky on his return the following day. He stated that he secured the keys to the automobile of the accused from the latter's filling sta-tion, and loaded the whisky in the car, after first breaking open two cases and removing 14 or IS pints which he took to friends in War, W. Va. Upon his return to Whitaker's the next day, he found that the whisky had been confiscated.

It is noteworthy that Newt Harman testified that the main reason for storing the whisky in Whitaker's car was that the car which he had used to transport the whisky from Kentucky needed overhauling and that he wanted to have it overhauled in War, W. Va, but he returned from War the next day in the same car and failed to state whether he had actually had the car overhauled at War. The reasonable inference to be drawn from his testimony is that he did not have the car overhauled.

Another reason for his going to War, W. Va, was to take his friends there 14 or 15 pints of whisky as souvenirs, which he said belonged to his employer.

The bill of sale for the whisky had been tampered with and erasures made. Newt Harman's name was signed to it, but he denied that he had signed it. From the testimony of Newt Harman the conclusion is inescapable that the accused did not know that the whisky had been stored in his car, yet the accused told the officers that it was being transported in interstate commerce under permits. It is obvious that he did know that the liquor had been stored in his car.

In our opinion the evidence amply discloses the guilt of the accused and abundantly supports the verdict and judgment of the trial court. No error was committed by that court in overruling the motion to strike the evidence.

It is vigorously urged that the instructions were not proper. Instruction A-1, given on behalf of the Commonwealth, is bitterly complained of. This instruction was based on Code, § 4675(50), which provides: "If any person, other than a common carrier, shall have, possess, keep, carry, ship or transport alcoholic beverages which shall 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 prima facie evidence that such spirits were illegally acquired.

"Spirits in the possession of any person and in amounts in excess of one gallon, in containers not bearing stamps or other evidence showing the same to have been purchased from the board or a druggist licensed to sell the same under the provisions of this act, shall be deemed for the purposes of this act to have been illegally acquired."

It is also urged that the amendment of instruction B-2, given on behalf of the accused, was reversible error. That instruction, with the amendment italicized, follows:

"The Court instructs the jury that if you believe from the evidence in this case that Newt Harman had purchased the whiskey in Kentucky, and that he was in the act of transporting the same to the State of Florida, that it was left at William Whitaker's temporarily without his consent, and that it was the intention of Newt Harman to continue with the whiskey into the State of Florida, you must find for the defendant."

In addition to the foregoing instructions, the court instructed the jury that the fact that the accused failed to take the stand in his own behalf could not be taken against him and that the burden was upon the Commonwealth to prove the case beyond a reasonable doubt. The court also instructed the jury on the presumption of innocence, and finally granted, at the accused's request, instruction B-4, which was in this language:

"The Court instructs the jury that if you believe...