Tomlin v. Commonwealth

97 S.E. 305, 124 Va. 795, 1918 Va. LEXIS 84

• Court: Supreme Court of Virginia
• Decided: November 14, 1918
• Status: Published

Opinion

Sims, J.,

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

[1, 2] 1. The verdict of the jury finding the accused guilty of the sale of liquor, expressly appears therefrom to have been based on the charge in the tenth count of the indictment. It might have been based, however, on the charge in the third count. The offense was covered by the charge in both counts. The only material difference between the two counts is that the former was more specific than the latter, in that it contained the unnecessary averment of the name of the person to whom the alleged sale of the liquor was made. These counts were, therefore, substantially one and the same. The court below, therefore, may very properly have considered it immaterial under which of these counts a verdict might be found, and on that ground have declined to instruct the jury that they could not consider the third count of the indictment.

Moreover, the accused was convicted of but one offense of selling ardent spirits, for which the minimum fine and imprisonment only was imposed by the verdict of the jury, and the judgment complained of, so that the accused was not in any way prejudiced by the refusal of the trial court to disregard the third count of the indictment.

2. As to the position taken by the accused, above noted —namely, that there was not sufficient evidence to support the verdict of the jury in finding the accused guilty of selling ardent spirits to Dr. W. A. Richeson, as charged in the tenth count of the indictment. That position overlooks that portion of the testimony of said Richeson, above quoted, in which he says: “* * * that he bought * * * from J. D. Tomlin” (the accused) “* * * half a gallon (of liquor) on November 28th; * * * that Jas. D. Tomlin” (the accused) “brought the liquor to witness on November 28, 1916, at which time he paid the $5.50 by check.”

[3] Certain points -are made concerning testimony in the case in conflict with the said testimony of Richeson, and also concerning other testimony bearing upon his credibility; but all of that was for the jury, and specific reference to it would needlessly prolong this opinion. It is deemed sufficient to say that it appears from the statement of the case above and from what has been said in this opinion that there was ample evidence to support the verdict of the jury in finding the accused guilty of the sale of ardent spirits aforesaid.

We, therefore, find no error in the verdict or in the judgment under review, in so far as they concern the offense of the sale of ardent spirits, and such judgment will be to that extent affirmed. But we are of opinion that the learned Attorney General is correct in his confession of error, mentioned in the statement of the case above, as to so much of the verdict and judgment under review as concerns the offense of the manufacture of ardent spirits, of which the accused was also found guilty, and to that extent the verdict of the jury and the judgment thereon will be set aside, and the accused will be granted a new trial of the charge against him of the last-named offense contained in the first count of the indictment, to be had not in conflict with the views expressed in this opinion.

Reversed in part.