190 S.E. 344 | W. Va. | 1937
Lead Opinion
The defendant, Henry Lacy, was tried, convicted and sentenced to the penitentiary for four years in the Intermediate *344 Court of Kanawha County upon an indictment charging him with having firearms, actively or constructively, in his possession, while engaged in the unlawful sale, or in aiding or assisting another or others in such unlawful sale, of alcoholic liquors. Upon application for writ of error, the Circuit Court of Kanawha County affirmed the judgment of conviction.
This case involves the validity of two separate search warrants, one upon the complaint of R. M. Dial for the search of "that particular upstairs apartment located at 617 1/2 Kanawha Street * * * and occupied by Henry Lacy and others," and the other upon the complaint of R. C. Alderson for "that particular building upstairs located at 621 1/2 Kanawha Street * * * and occupied by Henry Lacy." Through a window in the rear of 621 1/2 Kanawha Street and a door in the rear of 617 1/2 Kanawha Street, leading onto a common porch or platform, free access was had between the two premises.
The complaint, upon which the search warrant for 617 1/2 Kanawha Street was based, is to the effect that affiant "complains and says that he has cause to believe that and does believe that alcoholic liquors, as defined by the West Virginia Liquor Control Act are being * * * sold * * * in that particular upstairs apartment * * * contrary to the laws of the State of West Virginia, and that the facts for which belief arePossession Sale." The complaint for the premises known as 621 1/2 Kanawha Street is in the same form, but states that the facts for the affiant's belief are "sale."
Under the search warrants in question, a raid was made by members of the West Virginia Department of Public Safety at 9:30 o'clock P. M., on July 18, 1936. As a result of the raid, a large quantity of liquor was found stored at 6171/2 Kanawha Street, in an apartment in which Lacy lived. No liquor was found at 621 1/2 Kanawha Street. At the time of the raid, the officers saw no sales of liquor while on the premises. When the officers entered 621 1/2 Kanawha Street, the waitress ran to the back of the premises through the window and into the rear of 617 1/2 Kanawha Street, *345 followed by two officers. When the officers reached 617 1/2 Kanawha Street, they found the defendant with a Colt .44 revolver on his person. They immediately arrested, handcuffed, and took him to jail. Over objection, the state introduced testimony of prior sales at 621 1/2 Kanawha Street.
Objection was made to the evidence which was obtained as a result of the raid, and a motion was made to exclude the same on the ground that the warrants having been issued upon insufficient complaints were invalid. The trial court's action in overruling the motion is stressed by counsel for the defendant as their principal ground of error.
Prior to the enactment of Chapter 4, Article 6, Section 18, Acts 1935, under which the complaints in the instant case were executed, the statute (Code 1931,
"Every justice of the peace * * * upon information made under oath or affirmation that any person is * * * selling * * * any liquors, contrary to * * * or violating any provision of this chapter, or that the affiant has cause to believe and does believe that such liquors are * * * sold * * * in any house, building, or other place named therein, contrary to the provisions of this chapter or that any provision of this chapter is being or has been violated, shall issue his warrant, * * *."
And, under the foregoing statute, this court, on numerous occasions, has held that a search warrant based upon information, instead of facts, is sufficient compliance with the constitutional provisions (Section 6, Article 3, Constitution of West Virginia) relative to unreasonable search.State v. Kees,
The present statute (Acts 1935, Chap. 4, Art. 6, Sec. 18) provides: *346
"If there be complaint on oath or affirmation supported by affidavit or affidavits setting forth the facts for such belief that alcoholic liquors are being manufactured, sold, kept, stored or in any manner held, used or concealed in a particular house or other place in violation of law, the justice of the peace, * * * to whom such complaint is made, if satisfied that there is a probable cause for such belief, shall issue a warrant to search such house or other place for alcoholic liquors. Such warrants, except as herein otherwise provided, shall be issued, directed and executed in accordance with the laws of West Virginia pertaining to search warrants."
The question involving the sufficiency of the affidavit in the instant case, under the new statute, is novel to this court. The legislative policy of the new statute differs from the policy underlying our former decisions under the old statute. We cannot ignore the change in the statute. When the Legislature provided that the complaint in support of a search warrant shall contain facts upon which the affiant bases his belief, this requirement was to the effect that the affiant must set forth in the affidavit facts and not mere conclusions of his own or conclusions of law. In People v. Billerbeck,
We are, therefore, of the opinion that the judgment of the Circuit Court should be reversed, the verdict of the jury set aside, and a new trial awarded the defendant.
Judgment reversed; verdict set aside; new trial awarded.
Concurrence Opinion
Personally, I could reconcile the warrants with the statute; but since the other members of the Court are unable to do so, I concur in the reversal. *348
