State v. Biardo

• Decision Date: 10 May 1927
• Docket Number: 5289.
• Citation: 138 S.E. 384,103 W.Va. 588
• Parties: STATE v. BIARDO.
• Court: West Virginia Supreme Court

138 S.E. 384

103 W.Va. 588

STATE v. BIARDO.

No. 5289.

Supreme Court of Appeals of West Virginia.

May 10, 1927

Submitted May 3, 1927.

Rehearing Denied June 1, 1927.

Syllabus by the Court.

The seizure of a moonshine still and other appliances used in the manufacture of moonshine liquor is proper, under a search and seizure warrant to seize all liquors found, together with all vessels, bar fixtures, screens, jugs, bottles, and other appurtenances found on the premises used in connection therewith.

Error to Circuit Court, Marion County.

Tony Biardo was convicted of owning and operating a moonshine still, and he brings error. Affirmed.

A Blake Billingslea and J. V. Blair, Jr., both of Fairmont, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

WOODS J.

Convicted by a jury in the criminal court of Marion county and sentenced to confinement for two years in the penitentiary on an indictment for unlawfully and feloniously owning operating, maintaining, possessing, and having an interest in, etc., a moonshine still, and being refused a writ of error by the circuit court, defendant prosecutes error to this court.

The search warrant was issued on a proper complaint. The discrepancy between their dates, at most a mere clerical or typographical error, not having been raised in any manner until the final hearing before this court, will be treated as waived. State v. Henderson, 103 W.Va. 361, 137 S.E. 749; State v. John, 103 W.Va. 148, 136 S.E. 842. The form of the warrant is identical with that approved in State v. McKeen, 100 W.Va. 476, 130 S.E. 806. The indictment was drawn in the wording of the statute, and the motion to quash was properly overruled. State v. Joseph, 100 W.Va. 213, 130 S.E. 451; State v. Abbott, 98 W.Va. 159, 126 S.E. 589.

Two deputy sheriffs and the officer making the complaint testify that they searched the premises described in the warrant, and that they found a 16-gallon still complete, one 16-gallon pot to the still, one hydrometer, one shotgun, 16 gallons of moonshine, 100 gallons of mash, etc. Objection was made to all evidence relating to the finding of the still and other items, and a motion made to exclude same, on the ground that the warrant did not direct a search for and seizure of said articles, but that it specified "all liquors, together with all vessels, bar fixtures, etc." The still was a vital part...