90 W. Va. 628 | W. Va. | 1922
Defendant was indicted, tried and found guilty by the verdict of a jury, for unlawfully and feloniously owning, operating and having in his possession a mechanism, apparatus and device, commonly known as a moonshine still, and by the judgment of the court thereon was sentenced to confinement in the penitentiary for a period of two years and to pay a fine of three hundred dollars.
On the present writ of error, awarded him to such judgment, he complains, first, that the court below should have sustained his motion to quash the indictment, on the ground that the one count therein included the offense of having in his possession the mechanism, apparatus and device, which by section 37 of chapter 108 of the Acts of 1919, the statute then in force, amounted to a misdemeanor only, and that a felony and a misdemeanor can not ordinarily be joined in the same count. This is true as a general proposition, except where the misdemeanor charged is necessarily, as in this case, included in the greater offense. We so held re
Another point of error is that the trial court permitted the witness D. G. Fry to give in evidence his opinion that the apparatus proven to have been owned and operated by the defendant was a moonshine still'. He was one of the witnesses assisting in the arrest of defendant and the others who were found in charge of and operating the still. His answer was that it was what he knew as a moonshine still, and he knew that only as he was taught, like anything else he knew. Of course under the evidence in the case this fact was one for the jury; but there was no controversy about the surrounding facts and circumstances which were detailed by other witnesses and this particular one. The defendant offered no evidence whatsoever. The apparatus which defendant was found in the act of operating was located in the woods, hidden away from the public view by trees and undergrowths; and the jury could not have truthfully found otherwise than that defendant was guilty of the felony charged. So that, although the opinion of the witness Fry may not have been legally competent, .the jury could not have been misled or improperly influenced by the evidence of this witness, nor could it have prejudiced the rights of defendant. In such case the improper evidence' is regarded as harmless, and does not constitute reversible error. We seem to have so said in State v. Hull, 45 W. Va. 767; and State v. Davis, 68 W. Va. 142.
A third point for reversal is that the trial court, on motion of defendant, should have set aside the verdict and awarded him a new trial, on the ground that one of the jurors, J. H. Milam, was not a competent juror to try the case. On his voir dire, the record shows, he was duly qualified and accepted as one of the twelve chosen from the panel of twenty to try the ease. In support of his motion to set aside the verdict, defendant undertook to prove by the affidavits of three persons that before the trial they had had conversa
The only other error assigned and relied on is the giving
Finding no substantial error affecting injuriously the rights pf the defendant, we affirm the judgment.
Affirmed.