Hawkins v. Commonwealth , 138 Va. 751 ( 1924 )

Sims, J.,

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

The questions raised by the assignments of error will 'be disposed of in their order as stated below.

1. Do sections 21 Y% of the prohibition act of 1918 (Acts 1918, page 594, et seq.) — remaining unchanged in .Acts 1922, page 573 — and section 5 of the same act of 1918 — which also remained unchanged in Acts 1922— when read together make an intentional violation of the provision of the act, of which the accused is charged, an essential ingredient of the offense, where the offense charged is that created by section 213^ aforesaid, of having in one’s possession a still, in order to authorize the imposition of a jail sentence for such offense?

The question must be answered in the affirmative.

Section 213^, standing alone, does not, we think, make the intentional violation in question an essential ingredient of the offense in question in order to authorize a jail sentence. But said section 5, so far as material, provides as follows:

“* * * where upon the trial of any charge of violation of this act, if it shall appear to the court trying the case that there has been no intentional violation of any provision thereof, but an unintentional or inadvertent violation thereof, then such court shall instruct the jury that they may not impose a jail sentence.”

This language applies to the whole act, and, hence, necessarily applies to the aforesaid offense created by section 213^ of the act.

We are of opinion, therefore, that the learned trial court was in error in excluding the testimony of witnesses offered by the accused, which, as appears from the record before us, tended to corroborate the testimony of the accused on the subject of whether bis conduct constituted an unintentional violation of tbe provision of tbe act in question. On this subject the accused testified that “he had never seen such devices before and was totally ignorant as to what the apparatus was.” Now, of course, the credibility of this testimony of the accused, and of the corroborating testimony also, was for the court, under section 5 aforesaid, and if the court was not satisfied after hearing such testimony that it appeared therefrom that the violation of the act in question was unintentional, the court properly would and should have refused instruction No. 3. But before the court decided that question, it should have considered the corroborating testimony mentioned, and we think it was reversible error for the court not to have done so, and to have excluded it as inadmissible as a matter of law, as it did.

2. Was the action of the court in refusing to give instruction No. 2, offered by the accused, reversible error?

The question must be answered in the negative.

The accused was found guilty only of having in his possession “a still,” not of having in his possession “any other appliances connected with a still and used * * * in the manufacture of ardent spirits,” although the latter, it is true, is also an offense created by •section 21of the act.

That section, so far as material, is as follows: “It shall be unlawful for any person, except (etc.) * * * to * * * have in his possession any still, still cap, worm, tub, fermenter, or any of them, or any other appliances connected with a still and used, or mash or other substances capable of being used, in the manufacture of ardent spirits, unless (etc.) * * *.”

The facts certified are that there was found in the henhouse of the accused “a boiler, doubler and worm, which was disconnected or ‘knocked down.’ We do not know whether, as a matter of fact, such parts •constituted “a still,” but the jury by their verdict found that they constituted a still, and there is no assignment of error challenging that finding; so that we must take that' fact as concluded by the verdict. There was also a barrel “capable of being used as a mash barrel and also an empty five-gallon jug” found in the barn. We are of opinion that these were not “substances” capable of being used in the manufacture of ardent spirits within the meaning of the statute, but as the verdict of the jury did not embrace the possession of these articles, they may be discarded from further consideration. The language of the statute “and used” has reference, we think, only to “appliances connected with a still,” and not to the still itself, which according to the verdict of the jury in the instant case the accused had in his possession. And we are of opinion that the possession of the still constituted an ofíense under the statute, regardless of whether it was or was not used in the manufacture of ardent spirits.

However, for the reasons stated in connection with the consideration of the first question mentioned above, the case will be reversed and a new trial awarded, to be had not in conflict with the views expressed in this opinion.

Reversed and remanded for a new trial.