78 W. Va. 638 | W. Va. | 1916
Convicted upon an indictment charging a violation of §3, eh. 32a, Code, and fined and sentenced to imprisonment in the county jail, William Hurley, upon this writ, assigns as erroneous numerous rulings of the trial court. Of these assignments only those are urged seriously, either in brief or oral argument, -which challenge the sufficiency of the indictment and of the evidence to sustain the conviction and the propriety of the only instruction proposed and given on behalf of the state. It may be said that the sole question of any real merit, demanding consideration, is the challenge directed against that instruction.
For, more than once, the last time quite recently, it has been held in this state that an indictment in the form prescribed by §3, ch. 32a, is constitutional, and sufficient to satisfy the requirements as to time, place and circumstance and certainly as to the offense charged, and to serve as a protection against a1 second prosecution for the same offense. State v. Sixo, 87 S. E. 267; State v. Farley, not yet reported.
Furthermore, it is settled, also, that to avail a defendant the motion to require a more detailed enumeration of the particulars of the offense charged, where the statements of the pleading may reasonably be deemed to be too general and imperfect for defensive purposes, should be made before pleading to issue, and supported by affidavit specially designating the information deemed necessary. State v. Sixo,
The vital question in this case, as we have said, arises upon the instruction proposed bjr the state and given as requested. The gravemen of the charge preferred is that defendant did unlawfully “manufacture, sell, offer, keep, store and expose for sale, and solicit and receive orders for liquors.” The. language of the instruction seems to enlarge upon the charge made in the indictment, and to proceed upon the theory that the accused was indicted, under §3, ch. 32a, for keeping liquors, for personal use or otherwise, at a restaurant supposed to have been conducted by him. Its language is: “ The court instructs the jury that it was, in the month of April, 1915, and is now, unlawful for any person to keep or have for personal use, or otherwise, or to use or permit another to have, keep or use, intoxicating liquors at any restaurant within this state; and if the jury believe from the evidence in this case beyond all reasonable doubt that the defendant, William Hurley, during the month of April, 1915, at any time within said month, did keep or have, or permit another to have, keep or use intoxicating liquors at or in his restaurant in Marshall county, West Virginia, or in a room adjoining said restaurant, in close proximity thereto, and used in connection therewith, with communicating door or doors or other opening between said restaurant and said room, you will find the defendant guilty. ”,
Prom a fair analysis of the testimony, it is permissible to say there is no evidence tending to show, the accused kept intoxicating liquors at any restaurant operated by him with
In these circumstances, it is obvious defendant’s objection to the proposed instruction ought to have been sustained. The instruction had no relevancy to the matters in issue before the jury. It could not enlighten them upon any matter touching their investigations. No proof supported it. There was none justifying the giving of it. So that, unless the verdict was the only one proper under the evidence, the ruling of the trial court was erroneous. The giving of the challenged instruction will necessitate reversal, unless the evidence is conclusive of defendant’s guilt. Our eases agree in stating the rule to be that an erroneous ruling upon instructions or evidence will operate to the prejudice of the exceptor, .unless it clearly appears from the record no injury was done to him thereby, in which event the judgment will not be reversed for that cause. Beaty v. Railroad Co., 6 W. Va. 388; Clay v. Robinson, 7 W. Va. 348; Hall v. Lyon, 29 W. Va. 410; Boggess v. Taylor, 47 W. Va. 254; Ward v. Brown, 53 W. Va. 273; Buffington v. Lyons, 71 W. Va. 114, But if the court, in ruling upon the motion for a new trial* a motion made and overruled, can see, as evidently the circuit court of Marshall county did see, that defendant was
Bearing in mind the failure or refusal of defendant to offer any evidence explaining the various circumstances detailed by the witnesses for the state — the unexplained pres- ’ ence of bottles of whiskey, a keg of beer equipped with the necessary appliances to serve customers, an unusual number of beer glasses, a rinse in which to wash them after use, and other saloon equipment, including a table or bar from which to serve customers, and the presence of a bar-tender, who . offered his services when the officers appeared to search the premises, and inquired what they would have (evidently ■meaning the character of drink they desired), all these ‘things being indicative of an intent to serve the public who •should, appear for intoxicants in the room where the liquors and equipment were found — can it reasonably be said, in these circumstances, that the jury were not justified in arriving at the conclusion, in the language of the indictment, •that at the time and place mentioned therein defendant did unlawfully' keep for sale intoxicating liquors 1 In other words, could an honest jury, having in view its oath and the facts detailed, reach any other conclusion than that he was guilty as charged in the formal accusation against him? It may be conceded that the evidence could have been more explicit and conclusive. But, if sufficient to satisfy the jury, .as evidently it did satisfy them, beyond a reasonable doubt, -notwithstanding the erroneous instruction, defendant was not improperly convicted. For, unless the evidence was doubt
That defendant owned the property where the liquor was found is removed from the pale of doubt, by reason of the evidence introduced in the case. Although two Hurleys named William, having the relation of father and son, are mentioned by witnesses, the proof renders manifest defendant’s ownership of the grounds and buildings, notwithstanding the doubt sought to be reflected upon that fact by showing the issuance in 1913 in the name of the father of a license to conduct a restaurant on the property for the year, while the deed conveyed the property to defendant September 10, 1912. To the sheriff he paid taxes charged against it. He was there when arrested. Only a few days intervened between the date of the tax payment and the arrest, both occuring in the same month. When the arrest was made, he was found sitting immediately outside the room where the liquors were kept. These circumstances defendant did not attempt to explain, or in any manner to show he had no interest either in the property or any business conducted in it. This proof can not be ignored. It tends unequivocally to point to defendant as the owner of the building and operator of whatever business was conducted in it. From this proof, the jury were justified in reaching that conclusion. The proof detailed made a prima facie case, and called on defendant to rebut it if untrue. This he did not attempt to do. Convictions of the gravest character, upon evidence no more conclusive or convincing on the question of guilt, have repeatedly been sustained by appellate courts.
A conviction of first degree murder, based exclusively upon circumstantial evidence, coupled with the refusal of the trial court to grant accused a new trial, was approved in one of the earliest Virginia cases. Weeks v. Com., 2 Va. Gas. 387. State v. Kiger 63 W. Va. 451, furnishes another, illustration of the same character. In that ease there was no positive proof of guilt. The purchaser gave Kiger the money with which to buy two pints of liquor. The liquor' was produced by Kiger.' This fact, accompanied by proof that Kiger had
The reasons assigned and the authorities cited warrant the conclusion that the instruction given for the state did not prejudice the defendant in view of the facts proved, and that the verdict and judgment against him are not erroneous.
Judgment affirmed. Affirmed