Defendant was convicted in the criminal court of Marion County, on an indictment charging that he “did unlawfully and feloniously own, operate, maintain, possess and have an interest in a certain apparatus, mechanism and device for the manufacture or intoxicating liquors commonly known as a 'moonshine still.’ ”
First, it is asserted by counsel for defendant that the use of the word “or” in the indictment charges the offense in the disjunctive,' and that the part of the indictment following the word “or” does not charge an offense when standing alone, or if it alleges an offense, such offense would be only a misdemeanor; wherefore thе indictment fails to charge the defendant with a felony. To support this proposition they cite the ease of
State
v.
Miller,
68. W. Va. 38. In thаt case the indictment charged' in the disjunctive the doing of a number of acts, any one of which constituted an offense under the statute; and it was held that the use of the disjunctive conjunction “or,” instead of the copulative conjunction “and”’ rеndered the indictment bad for uncertainty. The rule there stated does not apply here. In the case at bar, it is evident thаt the use of the word “or” is simply a typographical error; and that “of” was meant. No other construction could pоssibly be placed on the language used. “Neither verbal or grammatical inaccuracies nor the misspelling of -words in аn indictment are fatal to it, where they do not affect the sense, and where from the whole context the words as well аs the meaning can be determined with certainty by a person of ordinary intelligence. ’ ’
State
v.
Halida,
Defendant objected to the introduction in evidence of the stills, pots, mash, hydrometers, etc., found by the officers on defendant’s premises and in his possession, because the same -were not mentioned in thе search warrant being
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executed, by them at the time they seized the articles in question. The warrant alleges that it was issued uрon complaint and information that defendant “did -unlawfully manufacture, sell, offer, expose, keep and store for sale, and barter, intoxicating liquors” as defined by the statute, in the place designated in the warrant to be searched. It is true, the warrant issued on this information and complaint, commanded the officer to whom it was directed, “to seize all liquors found thеrein, together with all vessels, bar-fixtures, screens, glasses, bottles, jugs and other appurtenances apparently used in the sale, keeping and storing for sale of liquors contrary to law.” The manufacture of intoxicating liquors is not mentioned in the сlause of the warrant directing a search of defendant’s premises, but it isl alleged that the warrant was issued upon that charge in the complaint and information; and the officer to whom the warrant was directed, was commanded to arrest dеfendant and bring-him before the justice of the peace issuing it or before some other justice of the county. The offiсers were lawfully upon defendant’s premises, with a warrant for his arrest for the offense charged; and they found there evidence of that offense, made a felony by the statute. Even though they had been on defendant’s premises without a searсh warrant, and only for the purpose of arresting him for the offense charged, they might have seized the articles named, аnd introduced them in. evidence against the accused on the trial. In
State
v.
Edwards,
It is said that the State’s instructiоn number one eliminated the question of intent on the part of defendant. It told the jury that it was unlawful to do the acts charged in thе indictment “for the purpose of distilling, making or manufacturing intoxicating liquors.” Certainly this sufficiently submilted to the jury the question of intent.
Defendant complains of the State’s instruction number two; that it in effect directed the jury to return a verdict of guilty irrespective of thе intent of the defendant or of the purpose for which he had the still. The instruction told the jury what acts by the defendant and the рossession of what materials by him they might consider in determining intent, but did not go so far as to tell the jury to find defendant guilty if they believed he owned, operated, maintained or had in his possession the “moonshine still” for the purpose of manufacturing intoxicating liquоrs; nor did it tell the jury to find defendant guilty of intent if they found the facts mentioned to exist. We can not see that this instruction was prejudicial to defendant.
The judgment will be affirmed.
Affirmed.