Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1888-04-20
a REMARKABLE DECISION UN
EVIDENCE.

The uncertainty of the law has passed
into by-word, but we doubt if the uncer-
tainty Of the construction of evidence
evinced in the following extract from
decision of the Virginia Court of Appeals
is not entitled to the same distinction. It
appears that one Savage of Accomac, was
sentenced to fine and imprisonment by the
county court for selling liquor against
law. The defendant appealed to the
circuit court, which confirmed the
county court, and then to the Court of
Appeals. The Court of Appeals ruled
against three grounds of appeal, but
granted new trial on two grounds
that the Indictment did not show that the
offence was committed in the county
where the venue IS laid, and this
sit is commended, however, that the county
court erred in overruling the defendants mo-
ton for new trial, and this position is well
taken.
The only witness introduced by the Com
monwealth to prove the sale of liquor by the
defendant is John W. johnson, who testifes
that in March, 1857, after the adoption of the
local option law for Lee district, in Accomac
county, and before the finding of the indict-
ment, he applied to the clerk of the defen-
dant's hotel for whiskey, that he was told by
the clerk he had no whiskey, but that he
could let him have some ginger, whereupon
he bought and paid ten cents for something
that was called ginger, and drank it for ginger.
1t Was served, he says, In whiskey glass, In
q room at the hotel formerly used as barroom,
and looked and tasted like aohiskey He
thought it would have made him drunk if he
had drank enough of it, and that it would not
have taken more of the ginger to make him
drunk than of common whiskey, but he was
not prepared to swear it was intoxicating be-
cause he did not drink enough of it to enable
him to do SO. And there was no other evil
dence upon the subject.
This being SO, it is plain that the evidence
is not sufficient to support the verdict. The
court cannot hold, In the absence of proof,
that ginger is intoxicating. and here the
evidence fails to show that the article bought
by the witness was of that nature. He says he
called for whiskey, but was told they had
none, and though the liquor he drank may
have looked and tasted like whiskey, yet he
could not swear it was whiskey, or that it was
intoxicating. The circumstances may justly
arouse suspicion against the defendant, but
that is not enough. In a criminal case the
defendant is entitled to an acquittal, unless his
guilt is established beyond reasonable doubt
and the verdict in the present case cannot be
sustained consistently with the rule.'
So the Court of Appeals appears to settle
the rule to be that a man, where local op-
ton prevails, may drink a substance from
whiskey glass that looks like whiskey,
tastes like whiskey, and that would make
him drunk if he drank enough of it. and
yet if the seller called it ''ginger," and be
did not drink enough Of 1t to make him
drunk, the jury is not to suppose that 1t is
Intoxicating" liquor. In short man
must have been drunk On a certain COM
pound that looks like whiskey and tastes
like whiskey, before the seller can be con-
victed. 1t is not surprising that so-caled
Prohibition cranks should rage when the
highest court in the State makes this sort
of decision. People that are neither Pro-
hibitionists nor cranks will wonder how
we are 10 enforce the Sunday law, License
law, or any other law, under such con-
structions of evidence. 1t seems to be a
construction that pretty we'll lets down the
bars for unlicensed traffic for whoever
chooses to engage in iJ.