Creasy v. Commonwealth , 133 Va. 658 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The sole question presented for our decision by the assignments of error is the following:

1. Was there sufficient evidence before the jury to support the verdict?,

This question must be answered in the affirmative.

The case turns upon the question of the credibility of Ferguson’s testimony, as against that of the accused and his witnesses. The verdict of the jury settled that question.

Therefore, taking the testimony of Ferguson to be true, we find on comparing it with the testimony of the accused and his mother that certainly both of the latter must have given a false account of the conduct of the accused at the time Ferguson saw him with something in his hand in a sack or bag, which had the appearance of the can of whiskey afterwards found. The testimony of Ferguson as to what he saw is absolutely irreconcilable with that of the accused and his mother. Both cannot be true. In addition to this false swearing of and for the accused, we have the evidence of the fact, unexplained, that the father and mother both ordered the officers off the premises when they saw them getting near the place at which the whiskey had been concealed. Further, there was the circumstantial evidence tending to show that the place of concealment of the liquor was not new, but one which had been used some time, as evidenced by the appearance of the broken bushes covering the can. The nearness of the place to the residence rendered it extremely improbable that it could have been so used for such a length of time as the circumstantial evidence indicated that it had been used, without some member of the family knowing of it and being able to account for such use in some way. This consideration tended greatly to discredit the truth of the testimony not only of the accused and his mother, but also that of the father and brother, when they testified to absolute ignorance of such use. Added to this, as identifying the accused as the person who carried the can of whiskey to the place where it was found, was the newly broken pieces of bushes on top of the can; the place from whence the evidence indicated they came; and the direct testimony of Ferguson, that he saw the accused go into the bushes, in the locality where the whiskey was found, with what appeared to be such a can as that, in a bag or sack carried by the handle of the can in his hand, and that he saw him come out of those bushes without anything in his hand; and the testimony of Nance that he saw the accused come out of that field “something” after that, and about 10 o’clock saw the accused crossing the road going from the residence to the corn field to work. The accused may well have taken the sack or bag to the residence on the latter occasion. All this, coupled with the consideration that the accused and his mother, at least, if not the father and brother, gave a false account of the conduct of the accused, if the Ferguson testimony is to be believed (which, as the jury believed it, we must believe to have been true), we must hold that there was ample evidence to support the verdict of the jury.

The case will therefore be affirmed.

Affirmed.