Woods v. Commonwealth

• Decision Date: 21 November 1938
• Parties: WOODS . v. COMMONWEALTH.
• Court: Virginia Supreme Court

199 S.E. 465

WOODS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 21, 1938.

Error to Corporation Court of Bristol; Floyd H. Roberts, Judge.

Walter H. Woods was convicted of maintaining a common nuisance in violation of statute, and he brings error.

Reversed and remanded.

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

Philip M. Flanagan, of Bristol, for plaintiff in error.

Abram P. Staples, Atty. Gen, and G. Stanley Clarke, Asst. Atty. Gen, for the Commonwealth.

HUDGINS, Justice.

This writ of error brings under review the verdict and judgment convicting the accused of maintaining a common nuisance in violation of section 4675(55) of the Code.

The first assignment of error is to the action of the court in refusing to strike the evidence from the consideration of the jury.

A synopsis of the evidence relied upon by the Commonwealth is as follows:

(1) When officers appeared at the door of the accused's home in Bristol, his wife saw them through the glass door and rushed back to the kitchen. The officers forced an entrance, and one followed her into the kitchen where the arrival of the officers seems to have caused some confusion. There was an odor of whiskey in the kitchen sink, in two cooking vessels which were in the sink, in two glass jugs, and on the clothes of the accused. Four men were at a table eating, and one, Dowell, was intoxicated.

(2) A search of the kitchen revealed 1 full pint Briar Cliff, dated 3-3-38, ¹/₂ quart Windsor, dated 3-3-38, and ²/₃pint Briar Cliff, dated 3-3-38. To each of these bottles of whiskey there was attached a revenue stamp. In addition, the officers found in the kitchen 6 dram glasses, 13 empty half pint bottles, with Cream of Kentucky labels, 54 empty pint bottles, with stamps, and in the attic they found 75 empty whiskey bottles of various sizes and shapes.

(3) Witnesses living in the neighborhood testified that men and women, at different times of the day and night, had been seen going to and from the premises. Sometimes they would enter the house one at a time, and at other times several persons would enter together. The length of time they stayed in the home of the accused varied. Most of them, however, remained only a few minutes. One or more persons were seen to enter the premises sober and leave apparently intoxicated. Sometimes the people who went into the home seemed intoxicated when they entered, and were apparently the same way when they left. Different persons were seen to leave the premises with a package about the size of a paper bag. People went to the premises walking, in automobiles, and occasionally in taxicabs. None of the visitors were identified.

The defendant testified that he was regularly employed by a manufacturing plant in Bristol earning from $17.50 to $20 a week; that he was an habitual user of alcoholic beverages and frequently served them to his guests and visitors; that before the officers arrived he had taken a drink of legal whiskey, but he denied that there was any odor of whiskey in the cooking vessels, about his clothes, or in the jugs. He further stated that Dowell came to his home in an intoxicated condition, and that no alcoholic beverages were sold to him there; that frequently visitors to his home brought legal whiskey with them, and if the containers were emptied the bottles would be left in the home; but he did not allow illegal whiskey in his home, and he never sold any whiskey, with or without a stamp. This testimony was corroborated by several other parties who were in a position to see and know what transpired in the home.

While the evidence tending to establish the guilt of the accused is circumstantial, considered as a whole we think it is sufficient to sustain a verdict of guilty.

The only other material assignment of error is in the refusal of the court to give Instruction 3-D as offered by the accused. This instruction informed the jury of the necessary elements to complete the offense defined in section 55 of the Alcoholic Beverage Control Act, Code 1936, § 4675(55), and concluded with a statement that the burden was on the Commonwealth to prove each element beyond a reasonable doubt before the accused could be convicted. The court, over the objection of the accused, amended the instruction by adding the following: "If the jury believe from the evidence beyond a reasonable doubt that the house in question was resorted to by drinking men that fact would be evidence for the consideration of the jury as tending to show that it was a place where intoxicating liquor could be purchased,...