184 S.E. 665 | W. Va. | 1936
Lead Opinion
This is a misdemeanor case in which the defendant, A. T. Matthews, was found guilty and sentenced for operating a "numbers-racket" lottery. He raises only two questions, to-wit, the sufficiency of the indictment and the sufficiency of a search warrant.
(1) The indictment was drawn under Code,
The further contention is made that the word "premises" used in the second count is a broader term than the word "house" used in the statute, and that penal statutes must be strictly construed. That contention is without force in this instance, because Code,
(2) The particular search warrant questioned by defendant directed search of "that certain place of business located at 144 1/2 Summers Street in the city of Charleston." The proof shows that 144 1/2 is the common number of three apartments on the second floor and three apartments on the third floor of a three story building, and that each of the apartments was occupied separately. The defendant contends that the designation of place to be searched simply as 144 1/2 Summers Street, is not sufficiently specific and that the search and the evidence procured thereunder were invalid. The officer who conducted the search made his return on the warrant described above. He had in his possession while making the search another warrant which directed search of "that certain place of business operated by Shorty Wilson on Summers Street in the City of Charleston." Shorty Wilson is W. B. Wilson, and his place was the particular apartment searched. The officer said "it was over the Idle Hour poolroom and lunch room at 144 1/2"; that he knew where to go and did not think there was a "twelve year old child in the city of Charleston that did not know where Shorty Wilson's place is." Both warrants were attached together when received by and while in possession of the officer. He said that he "did not examine them." Sufficiency of the warrant directing search of Wilson's place is not questioned.
The return of an officer on a search warrant is an incident of, and not a source of, authority. His authority emanates entirely from the warrant. The return is simply a ministerial duty imposed by law on the officer. For failure in that duty, the law penalizes the officer himself, but does not invalidate the search. The law contemplates that the return should be made on the very paper which the officer executes. The use of a different paper for the return need not be discussed now, since that use would *101
affect only the return itself. Here, the officer had in his possession while conducting the search, the two warrants attached together. The two were in effect one, each supplementing the other. The officer's unwitting selection of the warrant containing an indefinite description upon which to make his return, cannot deprive the search of validity under the other warrant. Moore v. Commonwealth,
The judgment of the circuit court is accordingly affirmed.
Affirmed.
Dissenting Opinion
I am obliged to disagree with the reasoning and conclusion of the majority of the court in this case for the following reasons:
The majority opinion sustains the conviction of the accused upon the second count of the indictment alone. The opinion cites the case of State v. Vaughan,
But the majority opinion here reasons that the second count of this indictment is not subject to the same vices that may be contained in the first count. The second count, in describing the lottery, refers to "such lottery described in the first count of this indictment." The first count charges that the accused "unlawfully did set up and promote and was concerned in managing and drawing a lottery or raffle for money or other thing of value." In other words, the description of the lottery upon which the second count is based is found in the first count, and the second count explicitly depends upon that description. We find that description is of "a lottery or raffle." The majority opinion would permit the reference from one count to the other for the purpose of including the words "for money or other thing of value." It would not include in the reference back the words "a lottery or raffle." The majority opinion recognizes that there are differences between these two games, but states that a raffle is usually within the definition of a lottery. True, but a lottery is not within the definition of a raffle. The terms are not synonymous; they may describe markedly different things, and therefore cannot be coupled by a disjunctive averment. This rule has been discussed by me in the recent case of State v. Dawson,
As pointed out in the discussion in State v. Dawson, I do not believe that Code,
I am aware of the liberality that this court has at times indulged in to sustain searches made under search warrants, it having gone so far as to declare in the case of State v. Brown,
In this case, the same officer was armed with two search warrants procured at the same time, each purporting to authorize a search of the same place. One of them described the place to be searched as "that certain place of business located at No. 144 1/2 Summers Street." The proof shows that No. 144 1/2 Summers Street is a stairway *104
leading up to second and third floor apartments occupied by a number of different tenants. Such a description, under the cases, is too indefinite to authorize a search, without further designation, of any one of the several different places included within the general description. U.S. v. Mitchell, 274 F. 128; U.S. v. Chin On, 297 F. 530; Myer v. State,
I do not mean by the foregoing to agree that the description of the place to be searched set forth in the second search warrant directed against "that certain place of business operated by Shorty Wilson on Summers Street in the City of Charleston" is sufficient. The following cases seem to me to hold that such a description is not good. United States v.Alexander, (D.C., S.D., Fla.) 278 F. 308; Thomas v. State, 54 Okla. Cr. R. 36,
But, although I admit candidly that I have not been able to find cases directly upon the question, I entertain serious doubt as to whether more than one search warrant for the search of the same premises should be issued at the same time, and placed in the hands of the same officer. It seems to me that doing so would, under the rule laid down in the majority opinion, arm the officer with a very dangerous discretion as to which warrant he should exhibit in making his search, which one he should make his return upon, and which one should be depended upon at the trial as justification for the search. The hapless citizen whose home might be searched would certainly not know where to raise the issue of an invalid search warrant. The majority opinion says that the officer may make his return upon one and depend for his authority on another. Certainly if, under this practice, the officer is to be permitted to rely for his authority upon any one of several search warrants or to make his selection between them at the time of the trial, as in this case, then the practice would result in a close similarity to the general writs of assistance so bitterly complained of at the time of the American Revolution. Could the officer make a separate search under each of several different warrants procured at the same time? This court has held inState v. Moran,
For the reasons that I have stated, I am of the opinion that this case should be dismissed on account of the insufficiency of the indictment. I express my views on the search warrant phase of the case because I do not want to assist in establishing in this state what I regard as a dangerous precedent. Today, we have before us a case involving what appears to have been a "gambling joint." Tomorrow, the home of some highly respected citizen may be invaded under the law we have laid down.