State v. Albert Counts.

• Citation: 90 W.Va. 338
• Court: Supreme Court of West Virginia
• Decision Date: 21 February 1922
• Parties: State v. Albert Counts.

90 W.Va. 338

State

v.Albert Counts.

Supreme Court of Appeals of West Virginia.

Submitted February 14, 1922,

Decided February 21, 1922.

1. Criminal Law A Warrant Charging Unlawful Manufacture, Sale, and Keeping for Sale Held Not Void for Duplicity.

The warrant charging that the accused did unlawfully manufacture, sell, offer, expose, keep and store for sale, or barter, intoxicating liquors as defined by sec. 1, chap. 13, Acts, 1913, contrary to law, under sec. 3, chap. 108, Acts, 1919, is not void for duplicity. (p. 341).

2. Same Joinder of Two or More Offenses cf Same General- Nature in a Warrant Not Ground for Quashing. Joinder of two or more offenses of the same general nature in a warrant is not good ground for quashing it. (p. 341).

3. Same -Refusal of Defendant's Motion for Bill of Particulars is Within Court's Discretion.

Refusal to grant defendant's motion for a bill of particulars in a criminal case is within the sound discretion of the trial judge, and the appellate court will not reverse for that reason unless it is clear that defendant has been prejudiced thereby. (p. 342).

4. Intoxicating Liquors Admitting Evidence of Defendant's Reputation Held Error.

In the trial of a criminal case wherein the defendant is charged with having in his possession, for sale, spirituous liquors contrary to law, it is error to admit evidence of the reputation of defendant as a dangerous man or as a violator of the prohibition laws, over his objection, when he has brought neither into question. (p. 344).

5. Same Finding Liquors on Defendant's Premises Held Prima Facie Evidence of Ownership and Unlawful Use.

The finding of spirituous liquors in large quantities, secreted in the dwelling-house, out-house and in the weeds in the yard of the dwelling house of defendant, by officers, under a lawful search warrant, is prima facie evidence, of defendant's ownership and unlawful use thereof. (p. 344).

6. Criminal Law Instruction That Finding Them Makes Prima Facie Case Held Error, Notwithstanding Other Instructions.

In a trial on a warrant for unlawfully manufacturing, selling, offering, exposing, keeping and storing for sale spirituous struction is given on defendant's motion telling the jury that "that under the provisions of the prohibition law of this State, the finding of intoxicating liquors on the premises of the defendant by the officers of the law under a search and seizure warrant makes a prima facie case, and if the defendant would remove this presumption, the burden is on him to show by a preponderance of the evidence that he had said liquors for a lawful purpose," even though another instruction is given on defendant's motion telling the jury that guilt of the defendant must be established from the evidence "by full proof," that is by evidence which satisfies the mind of the jury to the exclusion of every reasonable doubt, and that neither a mere preponderance of the evidence or any weight of preponderant evidence is sufficient for the purpose unless it generates full belief of the guilt of the accused to the exclusion of any reasonable doubt. (p. 344).

Error to Circuit Court, Jackson County.

Albert Counts was convicted in justice court of violating the intoxicating liquor laws, and appealed to the circuit court, where he was again convicted, and he brings error.

Reversed and remanded.

S. P. Bell, Lewis H. Miller and W. F. Boggess, for plaintiff in error.

E. T. England, Attorney General and R. Dennis Steed, Assistant Attorney General, for the State.

Lively, Judge:

Defendant was arrested on a warrant issued by a justice of the peace, tried, convicted and sentenced to confinement in jail for six months and to pay a fine of $300.00. He appealed to the circuit court, where a verdict of guilty as charged was found, followed by a sentence of confinement for two months and payment of a fine of $100.00. From this sentence this writ of error is prosecuted.

The evidence discloses that Constable Lanham, armed with the warrant, accompanied by Cosby and Crowder, prohibition officers, went to the home of defendant on the morning of June 21, 1921, all armed with Winchester rifles and revolvers, and approached defendant, who was standing near his dwelling house. The constable informed him that he had a search warrant, which defendant asked to see, and, while it was being produced, Cosby went into the house followed hurriedly by Counts, and very soon thereafter the noise of a scuffle reached Lanham and Crowder who had remained outside. They immediately went into the house and found Count and Cosby scuffling over something in the bed; and, thinking that Counts was trying to use a revolver, Crowder struck Counts on the head three times with his rifle barrel and demanded that he let loose of the object over which they were scuffling. Under the two struggling men were found a broken jar the liquor from which had been spilled on the bed, and another half-gallon jar containing whiskey, a portion of which had been spilled on the bed. Further search was made and a five gallon container about half full of corn whiskey was found in a nearby out-house. Other jars containing corn whiskey were found secreted in weeds near the house. Between five and seven gallons of whiskey were found, a sample of which was produced on the trial and examined by the judge and jury, on the container of which the justice of the peace had labelled," 'Prince Albert captured of Albert Counts, June 21st, 1921." By witness Lanham, the first witness for the State, the prosecution sought to attack the general reputation of defendant as a peaceable and law abiding citizen of the community; over the objection of defendant this evidence went to the jury. The witness stated that he had never heard anything against his reputation as a peaceful citizen, but had heard it said generally that defendant had been in the habit of selling whiskey, been "moonshining", and had been "hauling whiskey to town and selling it." The prosecution seeks to justify the introduction of this character evidence on the theory that it warranted the officers in being armed with rifles and pistols at the time of the arrest. Defendant denied that he had manufactured any of the whiskey found on his premises, denied having sold, offered, exposed, kept or stored for sale or barter the liquor found, or any other liquor. He made no explanation of the presence of the whiskey secreted in the bed or about his premises.

Error is assigned because the court refused to sustain defendant's motion to quash the warrant. The ground for the motion is that the warrant did not specifically inform defendant of the nature of the charge alleged against him, so that he could prepare his defense. The warrant charges

that Albert Counts on the day of June, 1921. "did

unlawfully manufacture, sell, offer, expose, keep and store for sale or barter, intoxicating liquors as defined by sec. 1, chap. 13, Acts 1913, contrary to the laws" etc. There are distinct offenses charged. Such a warrant is not bad for duplicity. State v. Miller, 89 W. Va 84, 108 S. E. 487. The warrant is in the statutory form of an indictment for these offenses which has been held to be sufficient to satisfy the requirements as to time, place and circumstance and certainty as to the offenses charged, and to serve as a protection against future prosecution for the same offense. State v. Hurley, 78 W. Va 638; State v. Sixo, 11 W. Va. 243; State v. Farley, 78 W. Va. 471. It will be observed that the words "(other than by 'moonshine still')" which are found in the statutory form in chap. 108, Acts 1919, and which follow the words "did unlawfully manufacture" do not appear in this warrant. There are now two offenses in the manufacture of intoxicating liquors, subjecting the offender to different punishment, that of manufacturing otherwise than by a moonshine still, and by a moonshine still. It is therefore uncertain as to which of these offenses defendant is charged with in the warrant; but the other offenses, selling, offering, exposing etc., are clearly and sufficiently charged, and if proven would sustain the warrant. There was no error in refusing to quash.

Before going into trial defendant moved for a bill of particulars and supported his motion by affidavit in which he asked that the State be required to furnish him with a "bill of particulars showing the time, place, offense and with whom the sale or barter was made, if any there was". There is no rule of law or of necessity in this State requiring the designation of the purchaser of liquors unlawfully sold. State v. Chisnell, 36 W. Va. 659. Nor is the particular time or place required to be shown in the accusation. It is sufficient if the time be alleged within one year preceding the finding of the indictment, and the place within the county. These are both alleged in the warrant. However, there are several distinct offenses charged against defendant in the complaint and warrant, namely, manufacturing, selling, offering, exposing and keeping and storing for the purpose of sale and barter. These are charged generally. Had either one of them alone been charged in the warrant, no bill of particulars would have been necessary. But on which charge was the prisoner prepared to defend? On which would the State rely for conviction, or if upon more than one, which of them? It is fundamental that the accused must be fully and plainly informed of the character and cause of the accusation. The Constitution so requires. Ordinarily, where there are several offenses charged in an indictment, ...