Brown v. Commonwealth , 97 Va. 791 ( 1900 )

Cardwell, J.,

delivered the opinion of the court.

William Brown was indicted in the County Court of Henrico county for feloniously and maliciously obstructing a car upon the railroad leading from Richmond city to Seven Pines, in the county of Henrico, by putting and placing a large piece of timber upon the track of the railroad, with intent to derail the car and thereby endanger the life and safety of the passengers therein. Upon his trial he was found guilty and sentenced to the penitentiary for four years. He thereupon applied for a writ of error to the Circuit Court of-Henrico county, which was refused, and the case is now before us upon a. writ of error awarded by one of the judges of this court.

Error is assigned to the action of the County Court in refusing the two instructions asked for by the accused, and in giving others in lieu thereof. In this the court did not err. The instructions it gave are a clear, accurate, and careful statement of the law as applied to the evidence in this case.

Of the remaining assignments of error, we need consider only that of the refusal of the court to set aside the verdict as contrary to the law and the evidence.

The accused took .the car in question in Richmond at 11:45' P. M., September 17, 1898, to go to Seven Pines, and when it had proceeded a little over half of the distance, he was ejected for disorderly conduct. The car continued on its route to Seven Pines, and promptly returned, reaching, a few minutes after 12 o’clock, the place where it collided with an obstruction, in the form of a railroad tie, which had been placed under the rail on one side of the track and over the rail on the other, at a point something over a mile from the point where the accused was ejected. "Within three to five minutes before the car struck The obstruction the accused was met on the side of the track bareheaded and apparently in rather an excited condition of mind, and was going in the same direction as when last seen. His hat seems to have been lost where he was put off the car; at least, a hat was found there, which the witnesses say, to the best of their knowledge and belief, was his hat, and the one he had on when he was put off. A few minutes after being put off the car, the accused was heard to make the threat that he would “ take a rock and knock ■-• out of Ed. Griggs,” the motorman who assisted the conductor in putting him off.

The threat and the loss of the hat constitute the only material evidence that tends in any way to connect the accused with the offence. It cannot be said to create more than a suspicion against him. Taking the whole evidence together, it is of a very doubtful and inconclusive character, and not sufficient to warrant his conviction.

“ The guilt of a party is not to be inferred, because the facts are consistent with his guilt, but they must be inconsistent with Ms innocence.” Hairston’s Case, 97 Va. 754; Bundich’s Case, 97 Va. 783, 787, and authorities cited.

We are, therefore, of opinion that the County Court erred in refusing to grant the plaintiff in error a new trial, and its judgment must he reversed, the verdict of the jury set aside, and a new trial awarded.

Reversed.