State v. Bennett
| Citation | 117 S.E. 371,93 W.Va. 548 |
| Decision Date | 07 April 1923 |
| Docket Number | 4728. |
| Parties | STATE v. BENNETT. |
| Court | West Virginia Supreme Court |
Submitted March 13, 1923.
Syllabus by the Court.
Under an indictment charging the defendant with unlawfully having in his possession moonshine liquor, the state is not confined to the date of commission alleged, but may show one or more violations within the statute of limitations; and, if the defendant desires to restrict the prosecution to the evidence relating to one violation, he should, after the state's conclusion in chief, first move the court to require an election by the state of the violation upon which it will rely for conviction, and then move the exclusion of all evidence relating to other violations.
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.
Error from Circuit Court, Fayette County.
E. J Bennett was convicted of unlawful possession of moonshine liquor, and he brings error. Reversed and remanded.
C. R Summerfield and C. E. Mahan, Jr., both of Fayetteville, for plaintiff in error.
E. T England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., W. G. Brown, State Prohibition Com'r, of Summersville, and George Love, of Fayetteville, for the State.
Defendant, on May 12, 1921, in the circuit court of Fayette county, was tried, convicted, and sentenced to confinement at hard labor in the county jail for a period of 90 days and adjudged to pay a fine of $100 and costs, on an indictment charging him with unlawfully having in his possession a quantity of moonshine liquor. Complaining of the toils of the law, he assigns several grounds of error, with special dependence upon the insufficiency of the evidence to warrant the verdict.
The evidence upon which the state relies for a conviction, involving two transactions or events, is as follows:
(1) In the month of December, 1921, the defendant, with five other men, including the driver, left the town of Fayetteville soon after noon in an automobile for Falls Branch, 10 or 12 miles distant in the country; the defendant taking along with him a repeating Remington shotgun he had recently acquired at the price of $67.50 in trade. In the near vicinity of Falls Branch, where they finally parked their car, lived the Abbot family. The father, Lafe Abbot, and the sons, John, William, and Charlie, resided, in separate houses, within a radius of a few hundred feet. Here the defendant left the car, and, taking his shotgun, went to the home of Charlie Abbot, where he claims to have bought two gallons of molasses in a two-gallon earthen jug, and left the gun. He placed the jug in a feed sack, and started for the car. On his way he stopped at the home of John Abbot, to discuss with John the purchase of his two mules (which purchase was later consummated), and reached the car with his baggage after an absence of 20 or 30 minutes.
In the meantime others of the party had gotten out of the automobile and walked away. They all started back to Fayetteville in the car after this stop of probably 30 minutes, with the jug in the sack and a quart of moonshine liquor in the possession of one of the crowd, other than the defendant. The defendant and another sat in the front seat with the driver upon their return, while the remaining three, one of whom possessed the moonshine, sat in the rear seat. On reaching the home of defendant, he or some one in the party carried the sack containing the jug into his house.
It is the state's theory that the jug contained moonshine liquor, for which the defendant traded his shotgun to Charlie Abbot. There is no claim that the quart of moonshine carried by one of the persons in the rear seat of the automobile belonged to the defendant, or that it was ever in his possession. It does not appear from whom it was obtained.
There is no direct evidence that the jug contained liquor. On the other hand, the defendant and three or four of the Abbots testify that it was filled with molasses. Nor is there any proof that the defendant bartered his $67.50 shotgun to Charlie Abbot for two gallons of moonshine liquor. They both testify that the gun was lent to Abbot for hunting purposes.
The prosecution offered evidence tending to show that , about the time of this transaction, Charlie Abbot sold liquor to other persons, and also some time prior thereto several gallons of liquor had been found in a small barrel buried near the home of Lafe Abbot. The defendant offered, but was not permitted, to show that both Abbots had been tried and acquitted on these charges.
(2) Late one afternoon, during the month of September, 1921, the defendant, accompanied by Mason Arthur, in a Ford automobile, rode into the town of Fayetteville, and being informed by Marshall Miller that the defendant's father desired to be taken home by defendant in his (defendant's) Paige car, defendant requested Miller to take Arthur in the Ford to the latter's home, about 2 miles out of town. Miller immediately took charge of the Ford, driving it away in company with Arthur. After going about 150 yards to the forks of the road, Arthur got out and started walking home, while Miller, turning off the main road, proceeded by another route. Some time later Miller returned to the main road, and after going about one-fourth mile beyond town, wrecked the car against a fence. After the wreck, the car within and the road or sidewalk beneath was damp, giving forth the odor of liquor; also a pint bottle, half filled with liquor, was found a few feet away. A witness for the state, who was within 20 feet of the car when it wrecked, saw one of the two men in the car throw something, resembling a sack, across the fence in the brush, and heard a crash like the breaking of glass. The next morning the sack was found in the brush, just across the fence, containing broken glass jars about which there was an odor of liquor. The man with Miller at the time of the wreck is not accounted for. Evidently Miller had picked him up after discharging Arthur at the forks of the road.
The state gives recognition to this incident upon the theory that the liquor was in the car when Miller took charge. There is, however, no direct proof of this claim. Miller, who was introduced as a witness for the state, was in jail at the time of his testimony. He had also been indicted for having this liquor, and was intoxicated at the time of the wreck. He evidently obtained the liquor somewhere "on his way" after leaving Mason Arthur.
Counsel for the defendant insist that the evidence involving this incident in September is improper, as tending to prove an offense at the time other than that alleged in the indictment. This view is incorrect. The state may prove the commission of the offense at any time within the statute of limitations. If the defendant desired the exclusion of all evidence except that directly relating to one commission of the offense...
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