State v. Barney Brown

• Decision Date: 09 March 1926
• Docket Number: (No. 5424)
• Citation: 101 W.Va. 160
• Court: West Virginia Supreme Court
• Parties: State v. Barney Brown

101 W.Va. 160

State

v.Barney Brown

(No. 5424)

Supreme Court of Appeals of West Virginia.

Submitted March 2, 1926.

Decided March 9, 1926.

1. Indictment and Information Ordinarily, it is Sufficient to Charge Offense in Language of Statute Creating it.

Ordinarily, it suffices to charge an offense in the language of the statute creating it. (p. 162.)

(Indictments and Informations, 31 C. J. § 260.)

2. Statutory Provisions.

Under Chap. 19, § 14, sub-§ 1, Code, members of the department of public safety are authorized and empowered to make arrests anywhere within the confines of the state, of a person charged with a violation of any law of this state, and when a witness to the perpetration of any offense or crime, or to the violation of any law of this state, they may arrest without warrant. (p. 163.)

(Arrest, 5 C. J. § 23.)

3. Arrest Criminal Law On Arrest by Officer in Exercise of Proper and Lawful Authority, Contraband Liquor in Possession of One Arrested May be Taken; on Lawful Arrest by Officer and Taking Possession of Contraband Liquor in Possession of Person Arrested, Testimony in Regard Thereto is Properly Admissible on Trial of Accused (Code, c. 19, § 14, subd. 1, chapter 32a, §37).

Where such officer, in the exercise of proper and lawful authority, makes such arrest, contraband liquor in the possession of the person arrested may be taken, and testimony in regard thereto is properly admissible on the trial of the accused. (p. 163.)

(Arrest, 5 C. J. § 74. Criminal Law, 16 C. J. § 1098.)

4. Criminal Law Evidence of Reputation of Accused For Truth and Veracity is Inadmissible When Reputation Not Attacked by State.

Evidence of reputation of accused for truth and veracity is inadmissible when not attacked by the state. (p. 164.)

(Criminal Law, 16 C. J. § 1122 [Anno].)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Monongalia County.

Barney Brown was convicted of the possession of moonshine liquor, and he brings error.

Affirmed.

E. Shirley Taylor and George M. Balphsnyder, for plaintiff in error.

Howard B. Lee, Attorney General, and J. Luther Wolfe, Assistant Attorney General for the State.

Woods Judge:

The defendant Avas convicted in the circuit court of Monongalia county on a charge of having in his possession a certain quantity of moonshine liquor, and was adjudged to pay a fine of $100.00 and to serve sixty days in jail. From said judgment he prosecutes this writ.

On the night of November 1, 1924, C. L. Breedlove and State Trooper Gordon W. Ross, in pursuance of instructions from the New England Fuel & Transportation Company, stopped a taxi, which had left the highway and was trespassing on said company's property. In making inquiry as to the occupants and where they were going, the officers flashed a light into the rear of the car, which disclosed the defendant and a woman in the back seat. Between their feet was a jug, with a temporary paper-wrapping mostly removed, a suit case and a small valise. Upon inquiry as to the jug, the defendant, according to the officers, stated that it was "moonshine liquor", but that it wasn't his. He told them that he hired the car, drove around to Washington Street, Fairmont, picked up Mary Jones, and then drove to Spence Street, where the packages were put in. Breedlove testifies that, "He (defendant) said he was taking it to Roy Brittentine at Cox Mine." The occupants of the car were all taken to the company's office, and Sergeant Moody of the State Police was called. Defendant paid the taxi bill, putting up his watch as part payment. Sergeant Moody then brought him to Morgantown. He was placed in jail, and later released on bond.

Defendant's story relates how he was called out of a barber shop on Madison Street, Fairmont, by one Mary Jones, and invited to accompany her in a car to her brother's at Cox Mine, Monongalia county. He agreed to go, after being advised that it would not cost him anything, returned to the shop for his top coat, and he and Mary Jones proceeded to Main Street and got into a car, from and driven by an employee of Chilson's Garage. He states that there were several bundles in the bottom of the car, but that lie did not see the jug until the officer saw it and called his attention to it. He denied telling the officers that the packages were put in at Spence Street and that the jug contained "moonshine liquor". he stated that the taxi driver asked Mary Jones for $12.00 taxi fare, and was informed by her that she did not have any money; that Mr. Moody, or one of the state officers, told defendant that he had "better fork up that money"; that defendant only had $8.60 or $8.70 with him as he "wasn't expecting to pay nothing"; that he was asked by the officer what kind of a watch he had; that the; officer said "it ought to be worth $12.00" and gave it over to the taxi driver. His relationship to Mary Jones sufficiently appears from his (defendant's) testimony elicited by his counsel on direct examination: "Q. Mr. Brown, tell the jury, if you weren't afraid to, why you w7ent on that ride. How long had you been acquainted with this lady you went with? A. As near as I could say, about six months. Q. You are married? A. Yes sir. Q. Mr. Brown, have you been intimately acquainted with this young lady? A. Yes sir. Q. Have you been out on parties with her that you would not care to have your wife know about? A. Yes sir. Q. That is the reason you went on this trip? A. Yes sir."

At the trial the defendant moved to quash the indictment, which motion was overruled. The indictment set out that the defendant "did unlawfully have in his possession a certain quantity of moonshine liquor, to-wit,............ pints." De-fendant's contention is that it is void because of uncertainty; that it accused him of having "no pints" or nothing. This position is untenable, as the crime is not for having any particular amount, but merely for having moonshine liquor in his possession. This is the offense prohibited by the statute. (Ch. 32 A, § 37.) Ordinarily, it suffices to charge an offense in the language of the statute creating it. State v. Chafin, 78 W. Va. 140; State v. Jones, 53 W. Va. 613; State v. Riffe, 10 W. Va. 794.

The next three assignments of error have to do with the officers' right to make the arrest, the admission of their testimony before the production of a valid search warrant, and the refusal of the court to allow Breedlove to explain in what capacity he was acting on the night of November 1, 1924. According to Ross' testimony it was their duty to "stop any cars coming on the company's property." The defendant being a trespasser, they had a right to stop the car and ask their purpose, and to direct them to leave the premises of said company. The search light in the hands of the officer, at the time he accosted the occupants of the car as to their mission, shining into the car revealed the exposed jug, and the inquiry as to its contents by the officer elicited the voluntary information from the defendant that it was "moonshine liquor". In Boyd v. 77. S., 286 Fed. 930, it...