138 S.E. 321 | W. Va. | 1927
The defendant was convicted on an indictment charging that he "within one year next preceding the finding of this indictment in the county aforesaid, did unlawfully bring and carry into this State and carry from one place to another within the State, for another, to-wit, for one Fred D. Lance intoxicating liquors, he the said J. O. Boggs, not then and there being a common carrier, for hire, carrying pure grain alcohol and wine," etc.
From the evidence, in which there is no conflict on any material fact, it appears that the defendant and the State's witness Jack Rogers, in defendant's automobile, were traveling on the public road, when they were accosted by a man *643 carrying a feed sack containing some bundles, who asked if he might ride in the car. The defendant said "Climb in;" and the man got into the car. Rogers testified that the man was Turk Lance. Lance produced from among the bundles in the bag a half a gallon jar of moonshine liquor, while the defendant was out of the car getting a drink of water from a spring near the road. Lance and Rogers each took a drink from the jar. Rogers testified that when defendant came back to the car, Lance offered him a drink, "and somebody came along in a car, so he didn't take a drink of liquor at that time; he drove out across a little branch and stopped, and Mr. Boggs took a drink, and, as well as I recollect, between there and somewhere up along there, took another drink, and came on down to Glenville here and got something to eat in a restaurant and went out here about the top of the hill and they took another drink." Defendant says he at first declined, and drove on "quite a bit"; but afterwards did take two or three drinks, which made him "very sick", because he was not in the habit of drinking. He admits that he must have been intoxicated.
Counsel for defendant argues that there is a variance between the facts alleged in the indictment and the proof; that the indictment alleges the liquor was carried for one Fred D. Lance, while the State's evidence tends to show the passenger's name was Turk Lance, and that defendant proved his real name was Arch D. Lance.
Section 31 of chapter 32-A of the Code provides that: "It shall be unlawful for any person to bring or carry into the State or carry from one place to another within the State, or to have or carry in or on any passenger train or other vehicle or conveyance, in any manner whatsoever, whether in his personal baggage or otherwise, any quantity of intoxicating liquors, whether such liquors are intended for personal use or any other purpose." Under the statute it is immaterial for whom the accused carries the liquor. The carrying is the offense. Therefore, the allegation in the indictment that the liquor was carried for Fred D. Lance is surplusage.
"An indictment, which charges an offense in the language *644
of the statute, will not be held bad because it contains surplus matter." State v. Hall,
It is contended that the State failed to prove intent, citing our cases of State v. Lambert,
The rule that the state need not prove criminal intent where a prohibited act is committed by the accused is not in conflict with the decisions in the recent cases above cited holding that intent is a necessary element of the statutory offenses there under consideration; for in such a case the defendant may by evidence excuse or justify the alleged unlawful act charged. That was the issue in those cases; and it was held that the question of intent should have been submitted to the jury by proper instructions. The error in the trial of those cases was the action of the trial court in withdrawing from the jury the question of intent, when there was evidence of justification or legal excuse. "The general rule is that, if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, and it is for the accused to rebut this presumption. The act of itself is evidence of the intent." 16 C. J. 81. "Where an act in itself indifferent, if done with a particular intent becomes criminal; there the intent must be proved and found; but where the act is in itself unlawful * * * the proof of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent." Rex v. Woodfall, 5 Burr. 2661, 2667, 98 Reprint, 398 (per Lord Mansfield).
Error is assigned in the refusal of the trial court to instruct the jury to disregard the following remarks made by the prosecuting attorney in his closing argument to them: " If you would follow and listen to what these two attorneys say, you would be ashamed to live in Gilmer County." It does not appear what had been said by the attorneys referred to. The trial court heard all of the arguments made by counsel for the State and for the defendant. Counsel necessarily have great latitude in argument before the jury; and the discretion of the trial court in ruling on the propriety of such argument will not be interfered with by the appellate court unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted *646
therefrom. State v. Clifford,
The judgment will be affirmed.
Affirmed.