State v. Allen

• Decision Date: 14 June 1954
• Docket Number: No. 10628,10628
• Citation: 139 W.Va. 818,82 S.E.2d 423
• Court: West Virginia Supreme Court
• Parties: STATE, v. ALLEN et al.

Page 423

82 S.E.2d 423

139 W.Va. 818

STATE, v. ALLEN et al.

No. 10628.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1954.

Decided May 11, 1954.

Opinion of Judge Riley June 11, 1954.

Opinion of Judge Browning June 14, 1954.

Syllabus by the Court.

1. 'All facts having rational probative value are admissible unless some specific rule forbids.' Point 3, Syllabus, Kirchner v. Smith, 61 W.Va. 434 .

2. 'To convict on circumstantial evidence alone, it should to a moral certainty exclude every hypothesis but that of guilt; and circumstantial evidence should always be scanned with caution.' Point 2, Syllabus, State v. Bennett, 93 W.Va. 548 .

Edward W. Hiserman, John T. Keenan, Willard L. Brown, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Charleston, for defendants in error.

GIVEN, President.

Defendants, William Allen and Sam Scott, were found guilty by a jury, and each sentenced to one year in the county jail, of charges contained in an indictment returned in the Intermediate Court if Kanawha County. The indictment charged that Allen did 'manufacture and sell a quantity of alcoholic liquor', and by a separate count charged that Scott and 'counsel, hire, procure, aid and abet the said Willian Allen to do and commit the said misdemeanor'. The Circuit Court of Kanawha County having refused a writ of error to the judgment of the Intermediate Court of Kanawha County sentencing defendants, this Court granted a writ of error to the judgment of the circuit court.

Evidence for the State shows that Scott, at the time of the alleged violations, was steward of the K. of P. Club located at 405 Shrewsbury Street, in the City of Charleston, and that Allen was also employed at that club. Duvois Eugene Jacobs, not then a member of the Charleston Police Department, but who was acting at the instance of the city police, about twelve thirty o'clock a.m. on January 11, 1953, visited the club, andl while there purchased one pint of liquor from Charlotte Morgan, who was working at the club. Neither Allen nor Scott was present at any time while Jacobs was there on this particular visit. On January 13, 1953, about five or five thirty o'clock a.m., Jacobs made a second visit to the club, during which visit he purchased a 'drink of whiskey' from Allen and paid sixty cents therefor. Scott was not present at any time during the second visit of Jacobs and no employee of the club, other than Allen, was present at the time Jacobs purchased the drink. On January 14, 1953, about three forty five o'clock a.m., Jacobs made a third visit to the club, at which time he also purchased a drink of whiskey from Allen, paying sixty cents therefor. Scott was not present during the third visit of Jacobs. On January 16, 1953, about one fifty five a.m., Jacobs made a fourth visit to the club, purchased and drank a bottle of beer, and heard Scott 'issuing orders to Allen, who was a bartender at that time, to give one of the customers who was there at the time a drink', and saw 'Allen give him a drink of whiskey', but did not see the customer or any other person pay therefor.

On the basis of information obtained by Jacobs, a search warrant was obtained and a search of the club premises was made, by officers of the city police department, about eleven fifty o'clock a.m., of January 2, 1953. In making the search there were found and seized 'Four full pts. of Glenmore and one broken seal Pt. of whiskey and one full fifth and one broken fifth of Burnett's and one broken fifth of Old Hickory whiskey, broken 5th of Glenmore and a broken 5th of Scotch and utility bills & cards addressed to Same Scott'. There was also found a number of 'shot glasses' and certain letters addressed to Sam Scott at 405 Shrewsbury Street. Scott was arrested at the time of the search, but Allen was not then present.

Defendants contend that the evidence admitted relating to the sale made to Jacobs by Charlotte Morgan related to a crime different than either of those for which defendants were tried, and that the admission thereof constituted prejudical error. They rely on cases like State v. Light, 127 W.Va. 169, 31 S.E.2d 841, and State v. Baker, 93 W.Va. 55, 115 S.E. 860. In State v. Light, the Court held: 'It is the general rule, subject to exceptions, that on trial of a person indicated for a specific offense evidence showing commission of distinct and unconnected criminal acts other than that charged is inadmissible.' See State v. Moubray, W.Va. 81 S.E.2d 117; State v. Gargiliana, W.Va., 76 S.E.2d 265. We think, however, the rule has no application to the facts in the instant case, for the reason that the alleged offense concerning which the evidence related was committed by neither Allen nor Scott.

Defendants contend further that the evidence had no probative value and therefore its admission constituted prejudicial error. In considering this contention we keep in mind that the State, without any objection by either of defendants, was trying defendants jointly and was attempting to convict Scott on circumstantial evidence. One of the facts to be established, essential to conviction, was that sales were being made at the club by employees of the club, with knowledge of Scott, their superior. Obviously, if sales were being made regularly by different employees under control of Scott, such fact would tend to establish that such sales were probably being made with knowledge of Scott. In other words, such fact would tend to show that Scott was probably guilty of aiding and abetting. Having some probative value, even though considered to be slight, the evidence was, therefore, admissible. See Kirchner v. Smith, 61 W.Va. 434, 58 S.E. 614, 11 Ann.Cas. 870; State v. Sheppard, 49 W.Va. 582, 39 S.E. 676; Hanriot v. Sherwood, 82 Va. 1; Grubb v. Burford, 98 Va. 553, 37 S.E. 4; Munger v. Cox, 146 Va. 574, 131 S.E. 841, 132 S.E. 687.

The only other question to be considered relates to the sufficiency of the evidence to support the verdict of guilty returned against Scott. As will be noticed from the above statement of the evidence, the verdict as to Scott rests wholly upon circumstantial evidence. In no instance is Scott directly or positively connected by the evidence with aiding or abetting in the sales made to Jacobs or, in fact, with any sale. If the evidence, therefore, is sufficient to sustain the verdict as to Scott, inferences of guilt must necessarily be drawn from facts established by the evidence.

There is no question, of course, that convictions of crimes may rest solely upon circumstantial evidence. See State v. Sheppard, supra. In such cases, however, the evidence must exclude every reasonable hypothesis except that of guilt. A defendant cannot be held for a crime on mere suspicion, however strong. State v. Burford, 136 W.Va. 472, 67 S.E.2d 855. In State v. Kelly, 105 W.Va. 124, 141 S.E. 633, we held: 'When two inferences, equally plausible, may be drawn from evidence, the law does not permit the jury to adopt the one more unfavorable to the accused.' In State v. Bennett, 93 W.Va. 548, 117 S.E. 371, we held: '2. To convict on circumstantial evidence alone, it should to a moral certainty exclude every hypothesis but that of guilt; and circumstantial evidence should always be scanned with caution.' See State v. Gill, 101 W.Va. 242, 132 S.E. 490; State v. McHenry, 93 W.Va. 396, 117 S.E. 143; State v. Gunnoe, 74 W.Va. 741, 83 S.E. 64; State v. Gebhart, 70 W.Va. 232, 73 S.E. 964; 23 C.J.S., Criminal Law, 907(e).

In the instant case the evidence shows that Scott was steward of the club, at the time of the slaes to Jacobs, and had been for about six years. He was not present at the time of any sale. Certain liquors in bottles, sealed and unsealed, glasses and other articles commonly used in serving liquors, were found at the club. But we cannot assume, and the jury was not warranted in finding from the evidence introduced, that the defendant Scott was using such articles illegally. Neither does the evidence establish, beyond a reasonable doubt, that Allen was under the direct control of Scott. There is no evidence tending to establish such control except the fact that Scott was steward of the club and the fact that Scott requested Allen on one occasion to serve a customer a drink of whiskey. Such facts of themselves do not necessarily infer unlawful sale. Standing alone, they are as consistent with innocence as with guilt. We do not weight evidence offered on behalf of defendants, but it may be referred to for illustration of the existence of a reasonable hypothesis other than that of guilt. Allen testified to the fact that the liquors and other articles found at the club were kept there by certain members of the club for their personal use, and were so used. While...