State Of West Va. v. Lucas, 9813
| Decision Date | 26 November 1946 |
| Docket Number | No. 9813,9813 |
| Citation | 129 W.Va. 324 |
| Parties | State of West Virginia v. Earl Lucas |
| Court | West Virginia Supreme Court |
1. Indictment
A demurrer to, and a motion to quash an indictment, separately made, which indictment is otherwise sufficient, and concludes with the language: "Found at the April term of said Court, 1945, on the information of Ed Sanders, City Jail, sworn in open Court and sent before the Grand Jury to give evidence to that body" are properly overruled.
2. Criminal Law
The granting of a continuance of the trial of a criminal case is within the sound discretion of the trial court; and such continuance will not be granted solely on the ground of the absence of a witness whose evidence, if procured, is not shown by the movant to be material to the issues involved in the trial.
3. Witnesses
Whether a witness, other than the accused, on trial in a criminal case must answer a question on cross-examination, which, though otherwise immaterial, may affect his credibility, but which tends to degrade him, is within the sound discretion of the trial court, though generally subject to the personal privilege of the witness to refuse to answer; but if such witness, without claiming such privilege, is required to and does answer the question, it will not be error in the trial of the accused, unless it appears, from the whole case, that he has been prejudiced thereby.
4. Criminal Law
That part of Paragraph (e) of Rule VI of the Rules of Pleading, Practice and Procedure, 116 W. Va. 1xiii, which provides, "Objections, if any, to each instruction shall be made when the same is offered; specific grounds of objection only will be considered", applies to the trial of an indictment for a misdemeanor.
Error to Circuit Court, Kanawha County.
Earl Lucas was convicted of unlawfully manufacturing and selling intoxicating liquor, and he brings error.
Affirmed.
Salisbury, Hackney & Lopinsky, D. L. Salisbury, and Lon G. Marks, for plaintiff in error.
Ira J. Partlow, Attorney General, Ralph M. Hiner, Assistant Attorney General, and Eston B. Stephenson, Special Assistant Attorney General, for defendant in error.
At the April term, 1945, of the Intermediate Court of Kanawha County, an indictment was returned against Earl Lucas, Paul Harrison and Gladys Harrison, charging that they "did unlawfully, without a state license and without authorization under the Liquor Control Act, manufacture and sell, and aid and abet in the manufacture and sale of a quantity of alcoholic liquor, against the peace and dignity of the state." The indictment ends with the following language: "Found at the April Term of said Court, 1945, upon the information of Ed Sanders, City Jail, sworn in open Court and sent before the Grand Jury to give evidence to that body." On the 8th day of May, 1945, the defendant, Earl Lucas, appeared and moved the court for a continuance of his case, which motion was overruled. Thereupon defendant's demurrer to the indictment, and his motion to quash the same, separately made, were overruled, to all which actions of the court exceptions were taken at the time. The case was tried upon defendant's plea of not guilty, and on the following day a verdict of guilty against Lucas was returned by the jury. A motion to set aside the verdict and award the defendant a new trial was made, and overruled, and judgment was entered, to which the defendant, Earl Lucas, excepted at the time, and to which he now prosecutes this writ of error.
The errors assigned are: (1) The refusal of the court to sustain defendant's demurrer and motion to quash the indictment; (2) refusal of the court to continue the trial of the case; (3) the consideration of evidence concerning the alleged transportation of liquor by defendant; (4) propounding of certain questions to the wife of defendant concerning her complicity with the defendant in an alleged larceny of a quantity of alcoholic liquors in the year 1943; and (5) the giving of certain instructions offered by the State, over defendant's objections. These errors will be considered in the order stated above.
It is contended that the indictment shows on its face that it was returned upon the information of Ed Sanders. Reference to the quoted portion of the indictment will show that the indictment states that it was found upon the information of Ed Sanders; but it goes further and states that said Sanders was sworn in open court and sent before the grand jury to give evidence to that body. Under Code, 62-2-1, prosecutions must be by indictment as to felonies, and as to misdemeanors either by indictment or presentment. Code, 62-9-1, prescribes the general form of indictments. The Liquor Control Act, Chapter 4, Acts of the Legislature, 1935, as amended by Chapter 77, Acts of the Legislature, 1943, prescribes the form of indictment used in this case. Under Code, 52-2-8, an indictment or presentment may be made on the information of two members of the grand jury; but there is no statutory authority for an indictment on the information of a person other than a grand juror.
The indictment shows on its face, however, that Sanders was sworn in open court and sent before the grand jury to give evidence. We think it clear that any statement made by Sanders to the grand jury, and upon which it apparently acted, constituted evidence and not information. This being true, the word "information" used in the indictment does not, in our opinion, constitute a fatal defect thereto, and we think the court properly overruled the demurrer and the motion to quash the same.
Defendant Lucas' motion for continuance was based upon his contention that the ownership of the places of business where it was alleged the sale of liquor took place was vested in Paul Harrison and Gladys Harrison, who were jointly indicted with him, and that the Harrisons, if present, would so testify. At the time of the trial it was understood that the Harrisons were living outside this State, but that they could be located and their presence procured. Waiving the question of diligence on the part of either the State or the defendant, we think the testimony of the Harrisons would not have been material on the trial of the charge against Lucas. All of the defendants named in the indictment were charged with manufacturing and selling, and aiding and abetting in the manufacture and sale of alcoholic liquor. The ownership of the property where such sales occurred, if they did occur, was immaterial. Whether defendant here participated in the sale, or in aiding and abetting in the sale of the liquor, was the question in issue. There was no error in refusing the continuance of the case.
There is evidence in the case that defendant Lucas transported in his automobile and carried liquor on his person, to at least one of the places where it is proved sales of liquor...
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