94 W. Va. 691 | W. Va. | 1923
This writ is to review a judgment and sentence of the circuit court rendered at its September term, 1922, on a verdict, whereby defendant was sentenced to confinement in jail seventy-five days and adjudged to pay a fine of. $100 and costs. The offense charged against defendant in the indictment is that of unlawfully having in his possession a quantity of moonshine liquor, in August, 1921. The indictment is against defendant, Phil Walker, Kennie Walker, Edwin Goddard, Dave Goddard and Clyde Pox, charging them jointly
The errors assigned for reversal are: (1) the evidence was not sufficient to sustain the verdict; (2) giving, of state’s instructions 2 and 3; (3) refusal to give defendant’s instructions 6, 7, 8 and 9.
On the first assignment of error it is necessary to closely scan the evidence. It appears that defendant and Edwin Goddard and some other men drove up to a store in an automobile at Meadow Bridge, and defendant asked the clerk if he had anything to drink, and he and the clerk and the other man whose name was not known (afterwards ascertained to be Dave Goddard) went into the store and passed into a back room where there was an ice box and where defendant asked the clerk if there was ah officer around. He had a- dark brown or red 'grip which he set upon the counter near the ice box and gave the clerk money to pay for two bottles of coca cola. The clerk stepped into the other room to get the change, and on his return saw defendant with a glass jar-on which he screwed the top and which he placed in the grip. This glass container, or Mason jar was about two-thirds full of some white substance which the witness did not undertake to identify but said it was the color of moonshine liquor, or of water or of kerosene. He detected the odor of liquor and was under the impression from the actions, speech and looks of defendant that he had been drinking intoxicating liquor. They then left the store and defendant and his companions went away in the automobile. ■ Logan Gwinn was on the front porch of the store and observed defendant and his companions and the grip, and conceived the idea that defendant
While it is not shown to a moral certainty that the liquid in the glass container in possession of defendant was liquor, the facts proven strongly indicate that it was, and the declaration of defendant that he would not have his liquor taken by the officer, together with the successful efforts of himself and companions to prevent the officer from taking the glass jar and its contents in custody was a very strong circumstance indicating that it was moonshine liquor and the jury was fully warranted under all the circumstances to so conclude. We think the evidence clearly sustains the verdict. State v. Hussion, 91 W. Va. 146; State v. McLaughlin, 91 W. Va. 654; State v. Snodgrass, 91 W. Va. 553.
The second assignment is directed to the state’s instructions: 2 and 3; and more especially No. 3. The first instruction reads:
"The Court instructs the jury that if you believe from the evidence and circumstances in this case beyond a reasonable doubt that the defendant, Phil Walker on the date set out in the indictment had in his possession a quantity of moonsine liquor, then you should find the defendant guilty as charged in the indictment.”
Though this instruction was objected to at the trial, defendant raises none in his brief; but he says instruction No. 3 is palpably bad. That instruction reads:
*696 “The Court instructs the jury that the finding of any quantity of intoxicating liquors in the possession of any person other than commercial whiskeys which were obtained and stored in homes for domestic use at a time when it was lawful to do so shall be prima facie evidence that the same is moonshine liquors and the burden of proving the contrary is upon the defendant."
The objection to this instruction is that the court in substance told the jury that the liquor in the jar was actually moonshine liquor and did not leave it to them to determine that fact; and that the burden was upon the defendant to show that the liquor in the jar was not moonshine liquor, but was commercial liquor which was obtained and stored in homes for domestic use at the time it was lawful to do so. We do not so construe this instruction. The court simply quoted to the jury the substance of that part of the statute found in see. 37 of chap. 32A of the Code, as follows: “the finding of any quantity of intoxicating liquor in the possession of any person other than commercial whiskies which were obtained and stored in homes for domestic use at a time when it was lawful so to do, shall be prima facie evidence that the same is ‘moonshine liquor.’ ” The statute defines what shall be presumed to be moonshine liquor. Any quantity of intoxicating liquor, except where it is commercial liquor obtained and stored lawfully, is declared to be moonshine liquor, and unless shown to be otherwise that presumption will stand. It is a presumption of law which may be rebutted, and the burden is upon the person found with such liquid to carry that burden. But does this instruction tell the jury that the liquid contained in the jar was moonshine liquor? It makes no reference to the whiskey in the jar, and simply states a proposition of law laid down by statute. Of course it would be incumbent on the jury first to find that the jar in the possession of defendant contained liquor beyond a reasonable doubt; and that necessity of finding is contained in state’s instruction No. 2 above set out. .Instructions must be read together. The substance of these two instructions, which were the only ones offered by the state, is to the effect that if the jury believed beyond a
The last assignment is to the refusal of the court to give defendant’s instructions Nos. 6, 7, 8 and 9. Instruction No. 6 offered and refused, is to the effect that defendant could not be found guilty if there was any other reasonable hypothesis consistent with his innocence. This instruction in substance was fully given and reiterated in defendant’s instruction No. 1, which was given. The same observation may be made of instruction No. 9, which we think was sufficiently covered by defendant’s instruction No. 5, given. Defendant’s instruction No. 7 in substance told the jury that the fact- that defendant had a fruit jar in his possession on the bank of the road as testified to by McGinnis, was not sufficient evidence on which to base a verdict of guilty; that the jury had no right to surmise or' guess that the said jar contained moonshine liquor, but that it was necessary to prove that fact beyond all reasonable doubt. This instruction does not take into consideration the evidence of possession by defendant of this same jar together with the gi\ip at .the Meadow Bridge store, and'the evidence and circumstances at that point tending to show that the jar contained moonshine liquor. It was telling the jury what weight to give to the evidence and tended to eliminate from their consideration all the facts and circumstances which should be considered together with the testimony of McGinnis.
We think there was palpable error in refusing to give defendant’s instruction No. 8. It will be remembered that none of defendants took the stand as a. witness in their own behalf. They saw fit to remain silent and call upon the state
In the State of Washington the legislature has seen fit to pass a statute which makes it the duty of the court to give such instruction irrespective of the request of defendant; and it has been held that the neglect of the court to give such instruction was error whether defendant had asked for it or not. State v. Myers, 8 Wash. 177; Linbeck v. State, 1 Wash. 336. The great weight of authority is that where the statute provides that the failure of accused to testify in his own behalf shall not raise a presumption against him, it is error for the court to refuse, at the request of the accused, to instruct that such failure shall not be considered by the jury adversely to the accused or that this fact shall raise no presumption against him. Thomas v. State, 139 Ala. 80; Farrell v. The People, 133 Ill. 244; State v. Carnagy, 106 Ia. 483; State v. Goff, 62 Kan. 104 (reversing same case reported in 10 Kan. App. —, 61 Pac. 680); State v. Landry, 85 Me. 95; Stout v. U. S. 227 Fed. 799; People v. Provost, 144 Mich.
For the error in refusing defendant’s instruction No. 8, we reverse the judgment and sentence, set aside the verdict and award a new trial.
Reversed; Verdict set aside; New trial awarded.