State v. Andrews
| Decision Date | 10 October 1922 |
| Docket Number | 4624. |
| Citation | 114 S.E. 257,91 W.Va. 720 |
| Parties | STATE v. ANDREWS. |
| Court | West Virginia Supreme Court |
Submitted September 26, 1922.
Syllabus by the Court.
If goods or other property of evidential value be taken from one accused of an offense by an unlawful search and seizure, the same should, on his application by petition, be restored to him, if they be such as he is lawfully entitled to have the possession of, and whether so or not, if objected to, neither the goods or other property, nor the evidence of the officers or persons engaged, obtained thereby, should be admitted in evidence against the accused on his trial.
The provisions of our constitution relating to unreasonable search and seizure and protecting one accused of crime from being compelled to be a witness against himself, being substantially the same as the corresponding provisions of the federal constitution and taken therefrom, should be given a construction in harmony with the construction of the federal provisions by the Supreme Court of the United States.
One indicted for an offense under section 37 of chapter 32a of the Code, as amended by chapter 115, Acts 1921, is entitled by plea timely presented to interpose as a defense the facts entitling him to the immunities granted by the provisos of said statute, and to have an issue on the facts averred made up and tried by the jury along with the other issues in the case.
Error to Circuit Court, Mingo County.
George Andrews was convicted of unlawfully having in his possession intoxicating liquors, and brings error. Reversed and remanded.
Goodykoontz, Scherr & Slaven and Okey P. Keadle all of Williamson, for plaintiff in error.
E. T England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and W G. Brown, State Prohibition Com'r, of Summersville, for the State.
The warrant issued by a justice and upon which defendant was tried and convicted by the justice, and was found guilty by the jury upon appeal to the circuit court, and adjudged to pay a fine of one hundred dollars and be imprisoned in the county jail for thirty days, charges that defendant, on the 25th day of December, 1921, in the said county did unlawfully have in his possession a certain quantity of intoxicating liquors, namely, one quart of red whiskey and one pint of moonshine whiskey, in violation of the laws of the State.
The statute, section 37 of chapter 32a of the Code, as amended by chapter 115 Acts 1921, upon which the warrant was based, including the provisos upon which the defendant in part relies, provides that:
"Any person who has in his possession any quantity of 'moonshine liquor' shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less then one hundred dollars nor more than three hundred dollars, and confined in the county jail not less then thirty nor more than ninety days: Provided, that if any such person shall fully and freely disclose the name or names of any person or persons from whom he received said moonshine liquor, and give any other information that he may have relative to the manufacture and distribution of the same, and shall truthfully testify as to any such matters of information, he shall be immune from further prosecution or punishment; and provided, further that the finding of any quantity of intoxicating liquor in the possession of any person other than commercial whiskeys which were obtained and stored in homes for domestic use at a time when it was lawful so to do, shall be prima facie evidence that the same is 'moonshine liquor.' "
What is moonshine liquor must be determined from the definition given in the statute of a moonshine still from which such liquor is manufactured. The same section provides:
"For the purposes of this act, any mechanism, apparatus or device that is kept or maintained in any desert, secluded, hidden, secret or solitary place, away from the observation of the general public, or in any building, dwelling-house or other place, for the purpose of distilling, making or manufacturing intoxicating liquors, or which by any process of evaporation, separates alcoholic liquor from grain, molasses, fruit or any other fermented substance, or that is capable of any such use, shall be taken and deemed to be a 'moonshine still'; and the owner or operator of such 'moonshine still,' shall be deemed a 'moonshiner.' "
The promptness with which defendant proceeded in the circuit court, and which may have a bearing on the questions to be considered, may be shown by the record. His trial before the justice took place on January 5, 1922. On the same day he announced his desire and purpose to appeal to the circuit court, and entered into a recognizance in the penalty of $500 for his appearance before the judge of the circuit court on January 9, 1922. We take judicial notice that that day was the first day of the January term of that court. The record is silent as to what took place, if anything, prior to January 28, 1922; but by an order entered on that day it is shown that defendant appeared by counsel, and the case being called for trial. he asked leave to file his petition, duly sworn to, which was objected to by the prosecuting attorney; but over his objection the petition was ordered to be filed. Whereupon the defendant moved that an issue be made upon the facts set up in the petition, which was resisted by the motion of the State to strike out the petition. Thereupon the court overruled the motion of the defendant to make up an issue on the matter of the petition and reserved its judgment on the motion to strike out the petition until it should hear the evidence of the State upon the trial on the warrant, to which ruling the defendant excepted.
Whereupon the defendant in person and by counsel appeared and tendered and asked leave to file his plea, duly verified, endorsed "Defendant's Plea in Bar," and based on said section 37 of chapter 32a of the Code, and especially the proviso thereof, to the filing of which plea the State also objected, but its objection was overruled and the plea filed. The defendant then moved the court to make up an issue on the facts presented by the plea, which motion was rejected; and the motion of the State to strike out the plea was also reserved until the court should have heard the evidence of the State upon the trial of the defendant upon the warrant.
The facts in the petition upon which an issue was desired by defendant were: First, that the only evidence introduced before the justice in support of said warrant and the only evidence which would or could be introduced before the court on his appeal to the circuit court consisted of the one quart of red or commercial whiskey and one pint of a liquid substance which petitioner believed was not intoxicating liquor nor moonshine liquor within the meaning of the statute; second, that the liquor so described was taken from the home and residence of the defendant without a warrant and in his absence and against his will, on December 25, 1921, by one Captain J. R. Brockus, an officer of the State, at that time a member of the Department of Public Safety, and one L. H. McCoy, another officer, who unlawfully seized, took and carried away said liquor contrary to law and in violation of the rights guaranteed to him by the state and federal constitutions; that said liquor and the evidence of the officers in relation thereto is illegal and incompetent evidence against him on his trial on said warrant. And the prayer of said petition is that said liquor be returned to him, and that it b e denied the State as evidence upon his trial.
The plea interposed was in effect as follows: That upon defendant's arrest on said warrant and when taken before said justice to answer for the alleged offense, he offered to and did fully and freely disclose to the justice the names of the persons from whom he received the liquor, and did give other information which he had relative to the manufacture and distribution of said liquor, as in said plea alleged, and did truthfully testify as to all said matters of information, to the effect and substance following, namely: That some time prior to January 1, 1919, in the city of Portsmouth, State of Ohio, one Rose Venturino gave him the one quart of red liquor specified, which he accepted and conveyed to his home in the city of Williamson, Mingo County, where he deposited the same and where it thereafter remained until it was so unlawfully and illegally seized and carried away by said officers; that defendant did not know of his own knowledge anything relative to the manufacture and distribution of said red liquor, but he was informed by said Venturino, which he then and now believed to be true, that said liquor was commercial whiskey manufactured by a commercial distillery and was distributed lawfully by the distillery through lawful agencies.
That respecting the one pint of liquor designated and described as moonshine whiskey, one Mike Maravelle, in the said city of Williamson gave him said pint of liquor, representing at the time that the same was not intoxicating, but possessed medical qualities, and that defendant then believed and still believes said liquor is not moonshine whiskey within the meaning of the statute, but that having no knowledge or information except as set forth in his plea, he makes full and free disclosure thereof and of the facts and matters set forth in his plea, and that he had on his trial before said justice, on January 5, 1922, truthfully and freely disclosed and testified thereto before the justice, and...
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