Emsweller v. Wallace, (Nos. 2970, 2968, 2969.)

• Court: Supreme Court of West Virginia
• Writing for the Court: POFFENBARGER, J
• Citation: 88 S.E. 787
• Parties: EMSWELLER. v. WALLACE, Sheriff, et al. STATE。 v. EMSWELLER. STATE v. JENKINS.
• Docket Number: (Nos. 2970, 2968, 2969.)
• Decision Date: 18 April 1916

88 S.E. 787

EMSWELLER.
v.
WALLACE, Sheriff, et al.
STATE。
v.
EMSWELLER. STATE
v.
JENKINS.

(Nos. 2970, 2968, 2969.)

Supreme Court of Appeals of West Virginia.

April 18, 1916.

(Syllabus by the Court.)[88 S.E. 788]

Error to Circuit Court, Monongalia County.

Frederick J. Emsweller was convicted of a violation of the liquor law by a justice of the peace, and applied for a writ of habeas corpus to John B. Wallace, Sheriff, and others. Judgment refusing discharge, and he brings error. Reversed and prisoner discharged. From a judgment denying an appeal from the justice's judgment of conviction, he also brings error. Writ of error dismissed.

Joseph J. Jenkins was convicted of a violation of the liquor law by a justice of the peace, and from a judgment refusing an appeal he brings error. Reversed and remanded, with directions.

Van A. Barrickman, of Morgantown, for plaintiffs in error.

Fred O. Blue and John T. Simms, both of Charleston, for defendants i in error.

[88 S.E. 789]

POFFENBARGER, J. Frederick J. Emsweller, sentenced by a justice of the peace to imprisonment in the county jail of Monongalia county for a period of 60 days, and further punished by the infliction of a fine of $100 and costs, including an attorney's fee of $10, all to be worked out on the public roads, as for a violation of chapter 13 of the Acts of the Legislature of 1913, known as the Yost Law, sought a discharge in the circuit court of said county on a writ of habeas corpus. To the judgment refusing to discharge him, and remanding him, he obtained this writ of error. He was also denied an appeal from the justice's judgment to the circuit court, and obtained a writ of error here to the judgment of that court refusing an appeal. Joseph J. Jenkins, punished at the same time and in like manner and upon the same kind of a charge, also obtained a writ of error to a judgment refusing him an appeal.

The complaint, made by the chief of police of the city of Morgantown and ex officio a constable of the county, charged that he had cause to believe intoxicating liquors were "being manufactured, sold, offered, exposed, kept or stored for sale, or bartered in said county aforesaid in that certain suit case, trunk, or other container in the possession of one F. J. Emsweller in the roads, streets, alleys, or room in said county, contrary to the laws of the state of West Virginia, " and prayed a warrant for seizure of "all liquors found therein, together with all vessels, bar fixtures, screens, glasses, bottles, jugs, and other appurtenances apparently used in the sale, keeping, or storing of liquors contrary to law, " and the arrest of "all parties or persons found in said room or place." The warrant recited the substance of the complaint, and then commanded entry of "that certain room or place in said county aforesaid, " and search and seizure of "all liquors found therein, together with all vessels, " etc., and the arrest of "all parties or persons found in said premises." The return of the officer shows the arrest of Emsweller and seizure of six pints of beer in "said room." The entry on the justice's docket recites arraignment of the accused and his plea of guilty.

The statute under which the complaint is said to have been made is section 7 of chapter 13 of Acts of 1913 (Code 1913, § 12S6), as amended by chapter 7 of the Acts of 1915, providing as follows:

"It shall be unlawful for any person to keep or have for personal use or otherwise, or to use, or permit another to have, keep or use, intoxicating liquors at any restaurant, store, office building, club, place where soft drinks are sold (except a drug store may have and sell alcohol and wine as provided by sections four and twenty-four), fruit stand, news stand, room, or place where bowling alleys, billiard or pool tables are maintained, livery stable, boat house, public building, park, road, street or alley. It shall also be unlawful for any person to give or furnish to another intoxicating liquors, except as otherwise hereinafter provided in this section. Any one violating this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars, nor more than five hundred dollars, and be imprisoned in the county jail not less than two nor more than six months: Provided, however, that nothing contained in this section shall prevent one, in his home, from having and there giving to another intoxicating liquors when such having or giving is in no way a shift, scheme or device to evade the provisions of this act; but the word 'home' as used herein, shall not be construed to be one's club, place of common resort, or room of a transient guest in a hotel or boarding house."

Section 31 of chapter 13 of the Acts of 1913, added by chapter 7, Acts of 1915, makes it unlawful for any person to bring or carry into the state, or from one place to another within the state, even when intended for personal use, liquors exceeding in the aggregate one-half of one gallon in quantity, unless there is plainly printed or written on the side or top of the suit case, trunk, or other container in large display letters, in the English language, the contents of the container or containers, and the quantity and kind of liquors contained therein. Violation of this section is made a misdemeanor punishable by fine and imprisonment. It also says the liquors not labeled may be seized and shall be conclusive evidence of unlawful keeping, storing and selling against the person having them in his possession.

Section 9 of the act (ser. sec. 1288) authorizes a warrant for the search of any house, building, or other place in which it is charged the manufacture, sale, offering, keeping, or storing for sale or barter of liquors contrary to law, is carried on, seizure of fixtures and arrest of persons found therein. The complaint and warrant here involved treat a suit case, trunk, or other container as a place of manufacture, sale, offering, keeping, or storing for sale or barter w^Tithin the meaning of that section. They proceed upon the theory that the mere possession of intoxicating liquors in a suit case, trunk, or other container in any road, street, alley, or room is an offense. Section 9 contemplates a house, building, boat, or place in which persons may be and perform the forbidden acts of manufacture, sale, etc. A suit case, trunk, or other small container of liquors or packages of liquors is not such a place. Although the warrant commands a search of "that certain room or place, " it is to be observed that no particular room or place is designated in either paper. Hence it, too, must intend "that certain suit case, trunk, or other container in the possession of one F. J. Emsweller in the roads, streets, alleys, or room."

Read in the light of the three sections of the statute here referred to, the complaint and warrant obviously attempt to charge one offense, or numerous offenses, under all three. It takes "roads, " "streets, " "alleys, " and "rooms" from section 7, "suit case, " "trunk, "

[88 S.E. 790]

and "other container" from section 31, and the search and seizure clause from section 9. The act prohibited by section 31 and pertaining to suit cases, trunks, and other containers is a distinct substantive offense, and is not alone proof nor evidence of unlawful keeping, offering, storing, or selling. Nor is possession of intoxicating liquors in a suit case, trunk, or other container always an offense or evidence of guilt. It depends upon the quantity, the presence or absence of a label, the place, and other circumstances. The Legislature evidently did not conceive the possibility of the manufacture, sale, etc., of liquors in a suit case, trunk, or other container, or occupancy of such a thing, as a barroom with all of its fixtures and paraphernalia, for it made no provision for warrants for search thereof. To charge an offense under section 7, it is unnecessary to mention any suit case, trunk, or other container. It suffices to charge the having, keeping, using of, or permission to use intoxicating liquors in any of the forbidden places.

Prom the terms of the complaint and warrant, it is manifest that the officers proceeded under the misapprehension of law that characterized the procedure, and led to erroneous results, in State v. Sixo, 87 S. E. 267. In that case, so much of section 31 of chapter 7 of the Acts of 1915 as made the mere possession of intoxicating liquor "conclusive evidence of unlawful keeping, storing and selling" was declared to be unconstitutional. It was also held here that the mere possession of such liquors properly labeled is not prima facie evidence of guilt of an offense under the statute. This necessarily means that the legislative act, not forbidding the carrying for personal use of two quarts of liquor, or less, without a label, permits it by implication, and also the carrying of a larger quantity for such use, if properly labeled. Section 7 of the act likewise impliedly permits a citizen to keep liquors in his home for his personal use. When this proceeding took place, the impression that a citizen could not carry,...