dissenting:
I concur in the decision of this Court whereby the judgments of the Circuit and Intermediate Courts of Kanawha County are affirmed as to the defendant, William Allen, but dissent from that part of the decision which reverses the judgments, and sets aside the verdict of the jury as to the defendant, Sam Scott.
Certainly, it was a question for the jury as to the guilt or innocence of Allen upon the testimony of Jacobs, and the officers who subsequently raided the club. Likewise, I believe there was sufficient evidence to sustain the verdict of the jury as to Scott. He was indicted and tried, not for selling liquor, but for aiding and abetting the sale thereof. He was, at the time of all of the sales testified to by Jacobs, and for several years prior thereto, steward of the club. At the time of the raid several letters, including utility bills, were found on the cash register, directed to him at the address where the club was located. On January 11, an employee of the club sold Jacobs a pint of liquor. On January 13, Allen sold him a drink of whiskey, and on January 14, at about 3:45 A. M., Jacobs purchased a second drink of whiskey from Allen. Jacobs was not a member of the club, and at no time was he questioned as to his identity when making these purchases. It is true that Scott was not present on either of the occasions, heretofore mentioned. However, on January 16, at 1:55 A. M., Jacobs made a fourth visit to the club, at which *826time Scott was present, and purchased and drank a bottle of beer. Scott was obviously in charge of the club, and the bartender, at that time being Allen, was directed by Scott, upon inquiry being made, to give one of the customers a drink of whiskey, although Jacobs states that he did not see the customer, or any other person, pay for it. On January 22, when the officers raided the club, they found great quantities of alcoholic liquors, and whiskey glasses, described in the Court’s opinion, and the man they found in charge of the premises was Sam Scott. There was no identification upon the numerous bottles of alcoholic liquor found there, indicating that they belonged to any particular members of the club. Several of the bottles had convenient appliances attached to them, which it may be said, as a matter of general knowledge, is for the purpose of facilitating the pouring and measuring of liquor by a bartender, or other persons dispensing such liquids.
There was no evidence to indicate that any commodities, other than alcoholic beverages, were dispensed at that place. It is, of course, well established that one may be convicted of a crime solely upon circumstantial evidence, although I do not consider this evidence wholly circumstantial, and that a jury has a right to make reasonable inferences from the evidence presented. In a criminal case, circumstantial evidence should always be scanned with caution, and the law does not permit the jury to adopt an inference unfavorable to the accused when, from the evidence, two inferences, equally plausible, may be drawn therefrom. It is my opinion that from this evidence there was only one plausible inference that could be drawn from the testimony, and that was the one adopted by this jury. Any other inference must, of necessity, be based upon speculation, incompatible with the knowledge, experience and deduction of the average juror, and goes far beyond the realm of reasonable doubt.
I would affirm the judgments of the Circuit and Intermediate Courts of Kanawha County as to both Allen and Scott.