Mansfield v. Commonwealth , 146 Va. 279 ( 1926 )

Burks, J.,

delivered the opinion of the court.

Ida Mansfield was convicted of a second violation of the prohibition law (laws 1924, chapter 407), and sentenced to confinement in the penitentiary for one year.

The only evidence of this second violation offered by the Commonwealth was the testimony of the deputy sheriff who made the arrest, which was as follows: “That sometime during January, 1925, he went to the home of Peyton and Ida Mansfield, and upon entering the house there was present Ida Mansfield, Peyton Mansfield, her husband, sick in bed upstairs, Margaret Grant, a white woman, and that Ida Mansfield was attempting to break a pint bottle that contained liquor. That Ida Mansfield’s reputation was that she had the reputation of handling liquor.”

A justice of the peace testified that he issued a search warrant to the deputy sheriff, and that “Ida Mansfield had the reputation of handling liquor,” and the certificate of the evidence states that “it was further proven that Ida Mansfield had been convicted prior to this time of unlawful possession of liquor, and had also served a term in the penitentiary on conviction, in federal court, both of which she denied.” For what offense she was convicted in federal court does not appear. This was all of the evidence offered by the Commonwealth.

The defendant, in addition to her own testimony, proved by four witnesses who agree in all substantial particulars, that a white woman, Margaret Grant, came to the house of the defendant and brought with her a suit case containing three pints of liquor; that at the time the defendant was downstairs in her house and knew nothing about the liquor; that Margaret Grant placed the liquor in one of the table drawers in the rooms; that when the defendant came upstairs and found the liquor there, she tried to get Margaret Grant to take the liquor away, and that the defendant was in the act of breaking one of the bottles of liquor when the deputy sheriff came in and arrested her.

This testimony in ho wise conflicts with the testimony for the Commonwealth, and was not contradicted, directly or indirectly. The testimony for the Commonwealth is entirely consistent with the innocence of the defendant, and when this is true a verdict of guilty cannot stand.

While the jury had the power to convict, they had no right to do so. As said in Burton & Conquest v. Commonwealth, 108 Va. 892, 899, 62 S. E. 376: “Where a fact is equally susceptible of two interpretations, one of which is consistent with the innocence of the accused, they cannot arbitrarily adopt that interpretation which incriminates him.”

The verdict of the jury will have to be set aside for lack of evidence to support it.

Exception was taken to the ruling of the trial court in-refusing to permit the defendant to ask the deputy sheriff, on cross-examination, the following question: “Please state what compensation you received for making the arrest in this case, in event the defendant is convicted, in addition to the ordinary arrest for a misdemeanor or a felony.”

It is not claimed that any reward was offered, or that the deputy was to receive any compensation other than the fee allowed by the statute for making the arrest. There was no error in this ruling. The statute fixed the fee and no other evidence on that subject was needed. If the statutory fee was deemed to create a bias or interest in the deputy, it was a legitimate subject of comment without other evidence on the subject.

Exception was also taken to action of the trial court in refusing to give the following instruction on motion of the defendant:

“The court instructs the jury that if they believe from the evidence that at' the time of the arrest of the defendant that she and her husband, Peyton Mansfield, were living together as man and wife in their home and that liquor was found in their home, that the presumption of law is that the liquor belonged to the husband, and unless the Commonwealth shows beyond a reasonable doubt that the liquor belonged to the defendant, or that she had it in her possession, they must find her not guilty.”

There was no error in this ruling. There is no room for presumption where there is positive, affirmative evidence on the subject. The whole theory of the defense, based upon the most positive evidence, was that the liquor was the property of Margaret Grant, and that neither the defendant nor her husband had anything to do with it.

For the reasons hereinbefore stated, the judgment of the trial court will be reversed, the verdict of the jury set aside, and the case remanded to the trial court for a new trial, if the Commonwealth shall be so advised.

Reversed.