86 W. Va. 300 | W. Va. | 1920
In an indictment under section 37, chapter 108 of the, Acts of 1919, .the first count charges that defendant did unlawfully and feloniously own, operate and maintain, and have in his possession an apparatus for the manufacture of intoxicating liquors, commonly known as a moonshine still; the, second that he did on the same day unlawfully and feloniously own, operate, maintain and have in his possession an apparatus-and device for the manufacture of intoxicating liquors which said device was of like kind and character to what is commonly known as a moonshine, still.
Upon demand by defendant the State filed a bill of particulars, specifying that defendant did in the month of June 1919, have in his possession a moonshine still manufactured from two galvanized wash tubs, secreted in the loft of his mother’s house, which he obtained from one Everett Yance; that before coming into possession of said still defendant knew the same had bee,n ■used in the manufacture of whiskey; that it was not equipped at the time it was found in defendant’s possession with any cap, worm or other fixture, but that there was evidence of mash in the bottom of it.
The questions certified to us on these rulings are:
1. Is the offense of having in one’s possession a “moonshine” still, or any device of like kind or character, punishable under Se.c. 37, chapter 108 of the Acts of the Legislature of 1919?
2. Is it an indictable offense to have in one’s possession, under said section of said act, a part of a moonshine still?
In prescribing the grade and penalty for the offenses charged, the statute says: “Any person owning, operating, or having any interest in any moonshine still, shall be guilty of a felony, and upon conviction thereof shall be fined not less than three hundred dollars nor more than one thousand dollars, and be confined in the penitentiary not less than two nor more than five years.” It will be observed that no penalty in express terms is imposed for having in one’s possession a moonshine still, and it was the opinion, of the circuit court that because of this omission no indictment would lie against the accused for this offense, wherefore this charge in the indictment was stricken out. Of course the other offenses charged for which penalties are imposed made the indictment good as to them, and if the court liad been correct in its conclusion that having in one’s possession such a still is not an-indictable, offense, by regarding the charge of that offense a separate count, its action on the demurrer thereto would have been justified and proper.
But we think the court was in e,rror in holding that having in one’s possession a moonshine still inhibited by the statute is not an indictable offense. The authorities cited by the court do not see,m to bear out its conclusion. These and many others hold that where a statute forbids a thing effecting the public but is silent as to any penalty, the doing of it is indictable at the common law. The effect of such statute is to enlarge, the common law. Bishop on Stat. Crimes, (3rd ed.), secs. 138,. 873; 1 Bishop New Grim. Law, (8th ed.), secs. 236, 237; 1 Russel on Crimes, (7th Eng. & Can. Ed.), 11; Ex parte Garrison, 36 W. Va. 686, 688. Such an offense is indictable unless the
It is urged on behalf of the State that to be in possession of the inhibited moonshine still was to be interested therein, made a felony by the statute, and punishable as such. Defendant is not indicted for being interested in such still. But we do not think we can so enlarge a criminal statute or give it. such forced construction. The authorities cited by counsel we do not think justify this construction of the statute,. Being criminal and highly penal, it is subject to the rule of strict construction.
The question now presented- is, can a felony and a misdemeanor be joined in the same indictment? As a general rule they can not. Scott v. Commonwealth, 14 Gratt. 687; Anno. 675. Here the offense of possession is not only charged in the same indictment but in the same, count thereof, which is certainly not permissible unless the charges of the several offenses made in the conjunctive can be treated as separate and distinct counts. For the purposes of this case we need not decide the latter question. For though possession be a1 separate offense, as we construe the statute, and at common law a misdemeanor, by force of the general statute cited, if, as we hold, it is also an incident to
Our answer to the first question submitted, therefore, is that possession of a moonshine still is punishable under the statute as included in the offense of operation thereof, charged as a felony, and if the accused should be acquitted of the graver offense but found guilty of the lesser, which the common law and the general statute would punish as a misdemeanor, he may be punished for the lesser offense, and that the court erred in striking out the charge of possession.
The second question certified is not presented by the motion to quash or demurrer to the indictment, but only by the bill of particulars. A bill of particulars 'is no part of the indictment, is not a pleading, and not the proper subject of demurrer or motion to quash. Wherefore we have no jurisdiction at this stage of the proceeding to review the, action of the circuit court or to answer the court’s inquiry thereon. Abell v. Penn Mut. Life Ins. Co., 18 W. Va. 400; Sheppard v. Peabody Ins. Co., 21 W. Va. 368; Cappellar v. Queen Ins. Co., Id. 576; Riley v. Jarvis, 43 W. Va. 43; State v. Lewis, 69 W. Va. 472; State v. Sixo, 77 W. Va. 243.
Our answers to the questions submitted will be certified to the circuit court.
Reversed and demurrer overruled in part.
