State Of West Va. v. Rigsby, (No. 9304)

• Decision Date: 12 May 1942
• Docket Number: (No. 9304)
• Citation: 124 W.Va. 344
• Parties: State of West Virginia v. Elbert Allen Rigsby
• Court: West Virginia Supreme Court

124 W.Va. 344

State of West Virginia

v.Elbert Allen Rigsby

(No. 9304)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1942.

Decided May 12, 1942.

1. Indictment

An indictment which charges in apt language the unlawful and felonious transportation of alcoholic liciuors in violation of Chapter 60 of the Code, and which alleges further, although under the heading "Second Count," that the person indicted has theretofore in this State, been indicted and convicted of a former like offense, is not bad on demurrer.

2. Intoxicating Liquors

A verified complaint by an agent or employee of the Liquor Control Commission which states that he has cause to believe and does believe that alcoholic liquors are being transported, sold, kept, stored and concealed in a described automobile, and that the facts for such belief are, in substance, that the complainant has information that a person designated by name, known to be a "bootlegger," will deliver whiskey in said automobile at a designated place, is sufficient basis for the issuance of a warrant for search of the automobile.

3. Arrest

Where peace officers witness an automobile being driven and brought to a stop on a public highway, and observe one of the occupants thereof alight and attempt to remove whiskey from the car and further see the driver, a known "bootlegger," on appearance of the officers, flee and abandon the car, such officers may, without a warrant, arrest the individual who alighted from the car and attempted to remove the whiskey, and thereupon may lawfully search the car for contraband liquor; and the fact that illegal liquor is thereby discovered is proper evidence at the trial against the operator who thus abandoned the car and fled.

Error to Circuit Court, Cabell County. Elbert Allen Rigsby was convicted of unlawful transportation of alcoholic liquors, and he brings error.

Affirmed.

Kenna and Riley, Judges, dissenting.

Salisbury, Hackney & Lopinsky and Samuel D. Lopinsky, for plaintiff in error.

Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Rose, Judge:

Elbert Allen Rigsby prosecutes this writ of error to the action of the Circuit Court of Cabell County in affirming the judgment of the Court of Common Pleas of that County, by which he was sentenced to the penitentiary for a term of from one to three years upon a second conviction for unlawful transportation of alcoholic liquors in violation of Code, 60-6-12. The errors assigned are: (1) That the demurrer to the indictment was improperly overruled; and (2) that the admission of certain evidence on behalf of the state was improper by reason of its having been procured under a search warrant claimed to be illegal. On the trial, the plaintiff in error undertook to defend by proving an alibi, but the jury's finding against him on that issue is not complained of here.

The indictment consists of four paragraphs. The first two charge adequately the violation of Code, 60-6-12, by the unlawful transportation of alcoholic liquor in Cabell County, but alleged that the act was done "unlawfully and feloniously." The third and fourth paragraphs are set apart under the heading "second count". They charge clearly that the defendant has been before convicted and sentenced in the State of West Virginia for a like offense.

The demurrer was based upon the theory that the first two paragraphs must stand alone and that they charge a misdemeanor only, not a felony; and that the last two paragraphs must be treated as a separate and distinct count, which do not allege any punishable crime.

The third and four paragraphs are not a "count" in any proper sense of the word, notwithstanding they are so called in the indictment. Their character is not determined by what they are called, but by their actual substance. This so-called "second count" does not in any sense make a charge upon which the defendant can be made to stand trial. It does not pretend so to do. It does not allege that he, in fact, did the act described therein, but only that he was "convicted and sentenced" therefor. These paragraphs further show on their face complete facts which constitute a perfect defense on the grounds of former jeopardy and of autrefois convict. If the indictment contained these paragraphs alone, it would be simply a nullity. But they do serve to show the character of the defendant with whom we are dealing; they place him in a class as to whom the offense charged in the first two paragraphs is a felony. State v. Mullenax, 124 W. Va. 243, 20 S. E. 2d 901, decided April 7, 1942; State v. Graham, 68 W. Va. 248, 69 S. E. 1010, 40 L. R. A. (N. S.) 924. The statute provides that one who has been convicted as charged in the third and fourth paragraphs and subsequently does what is charged against him in the first two paragraphs shall be guilty of a felony. Code, 60-6-12. We, therefore, consider the indictment good.

The search warrant was issued upon complaint, duly verified, of O. R. Ruth, an enforcement officer of the West Virginia Liquor Control Commission. It authorized the search of "that particular 1940 Model Ford V-8 Coupe, Painted Black, bearing Kentucky License 68-456." The complaint alleged that the affiant "has cause to believe" and "does believe that alcoholic liquors, as defined by the West Virginia Liquor Control Act, are being transported, sold, kept, stored, held, used and concealed in the county aforesaid" in the automobile above described, and "that the facts for such belief are that the affiant knowing the said Elbert Rigsby to be a bootlegger and having received information that the said Elbert Rigsby would deliver whisky to 840 1/2 4th Avenue in the above said automobile." The only criticism of this affidavit is that it does not set up sufficient "facts" to justify the belief pretended by the officer. Code, 60-6-18, provides that "If there be complaint on oath or affirmation supported by affidavit or affidavits setting forth the facts for such belief that alcoholic liquors are being manufactured, sold, kept, stored or in any manner held, used or concealed in a particular house or other place in violation of law, the justice of the peace, * * * to whom such complaint is made, if satisfied that there is a probable cause for such belief, shall issue a warrant to search such house or other place for alcoholic liquors." What "facts" shall be considered as sufficient to satisfy the issuing magistrate that the complaining person had probable cause for his belief that the law is being violated as stated, is sometimes a difficult question. In State v. Lacy, 118 W. Va. 343, 190 S. E. 344, 346, we held that an affidavit or complaint setting forth "sale" and "possession and sale" as the only facts in support of the affiant's belief was insufficient; but, in the opinion by Judge Riley, it was also said: "Under no condition, do we wish to be understood that the new statute requires the affidavits to contain a statement of the evidence, nor do we think that any detailed statement is required of the affiant in such an affidavit." Somewhere between no facts, and the superfluous details which may be properly designated as evidence, a reasonably broad latitude must exist within which an affidavit will suffice. The words in the complaint, "knowing the said Elbert Rigsby to be a bootlegger", do not state a conclusion of law as suggested by plaintiff in error. They are a statement of fact as completely as if it had been said that he was a farmer, a doctor or a carpenter. The allegation that the officer had received information that the defendant would deliver whiskey at a certain place in a certain automobile is likewise an allegation of fact, namely, that he had actually received such information. It is common knowledge that prosecuting officers are compelled to, and do in a great number of cases, make out their complaints largely, if not wholly, upon information. Actually, the only excuse for seeking a search warrant is usually that the officer "believes" an offense is being committed, and is searching for "facts" by which to prove it. If he knew the "facts" of the crime, no search warrant would be necessary. The sufficiency of the "facts" alleged in such an affidavit to justify the complaining officer's belief are directed to the sound discretion of the magistrate from whom the warrant is sought. Those in the complaint here involved are much more complete than those which we held insufficient in State v. Lacy, supra. This complaint should preferably have been worded as a direct statement, and a fuller showing as to time, place and source of the information relied upon would have been desirable, but a majority of the Court are unwilling to hold that it contains no facts from which the justice could be legally satisfied that the complaining officer had sufficient basis of fact for his belief that an offense against the law was being committed as in the complaint set out.

The state further insists that the search of the car in question was lawfully made after the arrest of the defendant's companion, Cassel, as for an offense committed in the presence of the arresting officers. Ruth and Folio were agents of the Liquor...