Seay v. Commonwealth

Hudgins, J.,

delivered the opinion of the court.

This writ of error brings under review the proceedings in a trial wherein Leo M. Seay was convicted of the unlawful sale of gin and fined $100 and sentenced to jail for 60 days.

The only assignment of error is that the evidence is insufficient to sustain the judgment of conviction.

The case was tried by the judge of the Hustings Court without a jury. Only one witness,. J. L. Blackburn, testified for the Commonwealth. He stated that he was an investigator for the Virginia Alcoholic Beverage Control Board. On June 7, 1945, he and an “informer” went to the Turf Club at 826 West Broad street, Richmond, Virginia. He joined the club on the recommendation of the “informer”. While there, he and the “informer” were served 8 drinks of gin by Leo M. Seay, Ashby Duke, John Valentine and Julius Coleman, for which he paid, as served, $1.50 to each of the four parties. Blackburn returned to the club on June 10 and bought two drinks, for which he paid Seay $1.50. On June 15, he went back to the club and tried to buy a drink from Leo Seay, who refused to sell.

On the trial before the police justice, Seay was convicted for the two alleged sales on June 7 and June 10, respectively. Coleman, Valentine and Ashby were convicted for illegal sales on June 7, 1945. On appeal to the Hustings Court, the five cases were heard together and, on the same evidence, Coleman, Valentine and Ashby were acquitted of all charges against them. Seay was acquitted of the alleged sale on June 10 and convicted of the alleged sale on June 7, as heretofore stated.

The situation is unusual. Blackburn’s testimony, if believed at all, convicts Leo Seay of two separate and distinct violations of law and convicts each of the other three named parties of illegal sales of gin. There is nothing in the transcript of the testimony which distinguishes one of the five alleged sales from the others, nor is there anything which tends to support the veracity of Blackburn’s statements regarding one sale more than any of the others.

It- appears that, on cross-examination, Blackburn refused to give the name of the “informer” until compelled to do so by the trial court. He admitted that the “informer” was paid by the Virginia Alcoholic Beverage- Control Board; yet the “informer” was not summoned as a witness and Blackburn stated that he did not know his address or his whereabouts at the time of the trial. Blackburn testified, before the police justice, that, on each of the occasions mentioned by him, he had been served drinks of whiskey by the four parties named, but, in the Hustings Court, he stated that gin, and not whiskey, was served him. He offered no explanation as to this discrepancy in his testimony.

The testimony for the accused is that Leo Seay is the manager of the Turf Club, which is composed of persons of good reputation in the city; that membership can be obtained only by the recommendation of some member and the payment of dues; that the club furnishes for its members and guests facilities for social purposes, such as booths, tables and a bar; that sandwiches, snacks and soft , drinks are served; that members have drinks prepared for them from intoxicants furnished by them; that a flat service charge of 20 cents per drink, regardless of the kind of mixed drink served, is made; that the club has 30 lockers for the use of members if they desire to leave liquor on the premises; and that there is a key to each locker, which is furnished the member.

Blackburn, under the name of William E. Dowdy, had joined the club. On June 7, he and his friend carried a fifth of a gallon of legal whiskey to the club and obtained a locker and key. Drinks were prepared for Blackburn and his companion from this bottle. On June 10, Blackburn again was served two drinks from his own bottle, for which he paid the usual service charge. On June 15, Blackburn again visited the club and begged the accused to let him have some whiskey. The accused refused and stated that he, Blackburn, had some whiskey in his locker. Blackburn said that he did not have the key with him. The accused still refused to give him a drink and, while they were discussing the matter, T. B. Duggan came in with warrants charging the parties with unlawful sales on previous occasions. The accused told Duggan that he had not sold Blackburn any whiskey at any time, and that Blackburn had a locker with whiskey in it. He offered to break the locker open and show him the whiskey. Duggan left, refusing to witness the opening of the locker. The locker was broken open in the presence of W. B. Gentry, the justice of the peace who had been called to issue the warrants. There was found in the locker a bottle with a tag on which was written the names of Bew and Dowdy. The quantity of whiskey remaining in the bottle indicates that about ten moderate drinks had been served therefrom. The bottle with the tag was introduced in evidence in both the police court and the trial court.

The other defendants testified that they had not sold Blackburn any whiskey at any time, but that they had served him drinks out of his own bottle and he had paid the usual service charge.

Blackburn further stated that Seay refused to sell him whiskey on June 15 because, about an hour before, Seay had seen him talking to T. B. Duggan, who was known to Seay to be an investigator of the Virginia Alcoholic Beverage Control Board. This statement was gratuitously interjected into the testimony and was merely 'an attempt by the witness to strengthen his own position.

The Attorney General contends that the credibility of a witness who makes inconsistent statements on the stand is a question for the jury, or for the trial court as a trier of fact sitting without a jury. This principle is firmly imbedded in the law of this jurisdiction. It was applied in the recent case of Atlantic Greyhound Corp. v. Shelton, ante, p. 684, 36 S. E. (2d) 625. While we do not intend to curtail or modify this principle in any particular, we think public policy requires the application of other principles to the peculiar facts of the present case.

1. The Virginia Alcoholic Beverage Control Board, in the performance of its duties, sent an investigator, J. L. Blackburn, and a paid companion to the Turf Club for the avowed purpose of obtaining evidence of- the unlawful sale of intoxicants. The investigator deliberately withheld the name of the paid companion in the police court and in the trial court until the trial judge compelled him to disclose the name. But the name was disclosed in such a manner and at such a time that this companion could not be summoned as a witness.

2. Blackburn seems to have been what is commonly known as a “swift” witness—that is, he changed his testimony two or three times in an apparent attempt to strengthen the case for the Commonwealth. T. B. Duggan, who is said to be a well known investigator for the Virginia Alcoholic Beverage Control Board, declined to obtain all the pertinent evidence in the case by his refusal to examine the locker when requested to do so by the accused. The record discloses that he was present at the trial of the accused and was not called as a witness to corroborate or deny the statements of other witnesses, although the record indicates that his testimony would have been pertinent in certain particulars.

3. Four charges owere dismissed and one charge was sustained on the same testimony. Such decisions are inconsistent.

Under the circumstances disclosed, we are not satisfied that the accused has had that fair and impartial trial the law secures to him.

For these reasons, the judgment is reversed and the case is remanded for such further proceedings as the Commonwealth may be advised.

Reversed and remanded.