90 W. Va. 338 | W. Va. | 1922
Defendant was arrested on a warrant issued by a justice of the peace, tried, convicted and sentenced to confinement in jail for-six months and to pay a fine of $300.00. He appealed to the circuit court, where a verdict of guilty as charged was found, followed by a sentence of confinement for two months and payment of a fine of $100.00. From this sentence this writ of error is prosecuted.
The evidence discloses that Constable Lanham, armed with the warrant, accompanied by Cosby and Crowder, prohibition officers, went to the home of defendant on the morning of June 21, 1921, all armed with Winchester rifles and revolvers, and approached defendant, who was standing near his dwelling house. The constable informed him that he had a search warrant, which defendant asked to see, and, while it was being produced, Cosby went into the house followed hurriedly by Counts, and very soon thereafter the noise of a scuffle reached Lanham and Crowder who had remained outside. They immediately went into the house and found Count and Cosby scuffling over something in the bed; and, thinking that Counts was trying to use a revolver, Crowder struck Counts on the head three times with his rifle barrel and demanded that he let loose of the object over which they were scuffling. Under the two struggling men were found a broken jar the liquor from which had been spilled on the bed, and another half-gallon jar •containing whiskey, a portion of which had been spilled on the bed. Further search was made and a five gallon container about half full of corn whiskey was found in a nearby out-house. Other jars containing corn whiskey were found secreted in weeds near the house. Between 'five and seven gallons of whiskey were found, a sample of which was produced on the trial and examined by the judge and jury, on the container of which the justice of the peace had labelled, “ ‘Prince Albert ,’ captured of Albert Counts, June 21st, 1921.” By witness Lanham, the first witness for. the State, the prosecution sought to attack the general reputation of defendant as a peaceable and law abiding citizen of the
Error is assigned because the court refused to sustain defendant’s motion to quash the warrant. The ground for the motion is that the warrant did not specifically inform defendant of the nature of the charge alleged against him, so that he could prepare his defense. The warrant charges that Albert Counts on the -day of June, 1921. “did unlawfully manufacture, sell, offer, expose, keep and store for sale or barter, intoxicating liquors as defined by sec. 1, chap. 13, Acts 1913, contrary to the laws” etc. There are distinct offenses charged. Such a warrant is not bad for duplicity. State v. Miller, 89 W. Va. 84, 108 S. E. 487. The warrant is in the statutory form of an indictment for these offenses which has been held to be sufficient to satisfy the requirements as to time, place and circumstance and certainty as to the offenses charged, and to serve as a protection against future prosecution for the same offense. State v. Hurley, 78 W. Va. 638; State v. Sisco, 77 W. Va. 243; State v. Farley, 78 W. Va. 471. It will be. observed that the words “ (other than by ‘moonshine still’) ” which are found in the statutory form in chap. 108, Acts 1919, and which follow the words “did unlawfully manufacture” do not appear in this warrant. There are now two offenses in the manufacture of intoxicating liquors, subjecting the offender to different punishment, that of manufacturing otherwise than by a moonshine still, and by a moonshine still. It is
Before going into trial defendant moved for a bill of particulars and supported his motion by affidavit in which he asked that the State be required to furnish him with a “bill of particulars showing the time, place, offense and with whom the sale or barter was made, if any there was”. There is no rule of law or of necessity in this State requiring the designation of the purchaser of liquors unlawfully sold. State v. Chisnell, 36 W. Va. 659. Nor is the particular time or place required to be shown in the accusation. It is sufficient if the time be alleged within one year preceding the finding of the indictment, and the place within the county. These are both alleged in the warrant. However, there are several distinct offenses charged against defendant in the complaint and warrant, namely, manufacturing, selling, offering, exposing and keeping and storing for the purpose of sale and barter. These are charged generally. Had either one of them alone been charged in the warrant, no bill of particulars would have been necessary. But on which charge was the prisoner prepared to defend? On which would the State rely for conviction, or if upon more than one, which of them ? It is fundamental that the accused must be fully and plainly informed of the character and cause of the accusation. The Constitution so requires. Ordinarily, where there are several offenses charged in an indictment, the State should be required to elect on which it relies for conviction. This is ample protection for the accused from an embarrassment. State v. Jarrell, 76 W. Va. 263. A bill of particulars is for the purpose of furnishing details omitted from the accusation or indictment, to which the defendant is entitled before trial. The application therefor is addressed to the sound discretion of the trial court, and it must be clear that this discretion has been abused to the prejudice of the accused before an appellate court will reverse. 2 Bishop’s New Crim. Proced. sec. 643.
The next ground of error is that the State’s instruction No. 1, which told the jury that the finding of the liquors in the home and 'on the premises of defendant by the officers under the search warrant was prima facie evidence of the unlawful selling and keeping and storing for sale of same by defendant, does not correctly propound the law and was prejudicial error. It is asserted that the finding of such liquors, under the circumstances detailed, is not prima facie evidence of the unlawful selling and storing for sale, and
Instruction No. 2 for the State is erroneous in that it leaves out the element of reasonable doubt. That instruction reads: “The Court instructs the jury that under the provisions of the prohibition law of this State, the finding of intoxicating liquors on the premises of the defendant' by the officers of the law under a search and seizure warrant makes a prima facie case, and if the defendant would remove this presumption, the burden is on him to show by a preponderance of the evidence that he had said liquors for a lawful purpose.” The instruction is loosely drawn. It tells the jury that the finding by the officers of intoxicating liquors on defendant’s premises under a-search warrant “makes a prima facie case.” What is meant by a “prima facie case”? Possibly it meant that such finding was prima facie proof of the offenses charged in the warrant. It should so state. But the weakness and insufficiency of the instruction lies in the assumption that defendant must remove this presumption by a preponderance of the evidence, leaving out the qualification that if his evidence of the lawful pos
We preceive no error in State’s instruction No. 3, which instructs the jury that they are the sole judges of the credibility of the witnesses and the weight to be given to their testimony; and telling them that they have the right to take into consideration the conduct and appearance of the witnesses, and their interests and motives in testifying, in weighing their evidence and arriving at a verdict.
The judgment will be reversed, the verdict set aside and a new trial awarded.
Reversed and remanded.