Crosby v. Commonwealth , 132 Va. 518 ( 1922 )

Prentis, J.,

delivered the opinion of.the court.

Lee Crosby has been convicted of the illegal sale of intoxicating liquor. Robert Watkins, a witness for the Commonwealth, testified that the accused, in his house, sold him half a pint of whiskey; that immediately thereafter, as he was walking along a public street in the city of Norfolk, going towards his own home, he was arrested for the unlawful transportation of such whiskey, and that he was under indictment therefor. Dickins, a police officer, testified that he saw Watkins go into the house of the accused, remain three or four minutes, then come out and walk down the street; that he found in his possession half a pint of whiskey; that just before he saw Watkins go into the house, he saw the accused come to the window and look in both directions up and down the street. The only conflicting testimony is that of the accused, to the effect that he had not sold the whiskey to Watkins.

[1-4] Only one error is assigned, namely, that the accused, by his attorney, moved the court to instruct the jury orally to the effect that the said Watkins being an accomplice with the said defendant in the sale of the whiskey, his testimony should be received with caution, which request was refused by the court. It may be assumed that Watkins was an accomplice, and of this we have no doubt (State v. Ryan, 1 Boyce [Del.] 223, 75 Atl. 869; People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. [N. S.] 704), and, therefore, the court should have given an instruction which embodied the principle contended for. The rule in this jurisdiction is that the jury, as triers of the fact, may, if they are satisfied of the guilt of the accused, convict him upon the uncorroborated testimony of a single accomplice, though it is well settled that the evidence of an accomplice should be received and acted upon by a jury with great caution. Hunt v. Commonwealth, 126 Va. 819, 101 S. E. 896. While in this case, the court should have supplied the omission in the instruction, and, as amended, have given it to the jury, still, in view of the evidence, we decline to hold the failure to do so to be reversible error. It clearly appears that the accomplice here was corroborated by the police officer, in that he saw the accused in the house just before the alleged transaction; that he saw the witness, Watkins, enter the house; and that he found the whiskey in the possession of Watkins the alleged purchaser; so that the occasion and opportunity for the crime as well as the possession of the whiskey alleged to have been purchased were all clearly shown. This, then, is not a case in which the accused has been convicted upon the uncorroborated testimony of his accomplice.

There is no other material fact shown in the record, and no ground for-reversal is shown.

Affirmed.