State v. Boggs

• Decision Date: 10 May 1927
• Docket Number: 5857.
• Citation: 138 S.E. 321,103 W.Va. 641
• Parties: STATE v. BOGGS.
• Court: West Virginia Supreme Court

138 S.E. 321

103 W.Va. 641

STATE v. BOGGS.

No. 5857.

Supreme Court of Appeals of West Virginia.

May 10, 1927

Submitted May 3, 1927.

Syllabus by the Court.

Immaterial surplus matter in an indictment which charges an offense in the language of the statute may be disregarded.

The commission of an act made unlawful by statute will be presumed to have been done with criminal intent, and it is for the accused to rebut such presumption.

The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.

Error to Circuit Court, Gilmer County.

J. O Boggs was convicted of carrying intoxicating liquor into the state, and he brings error. Affirmed.

R. F Kidd and J. D. Jones, both of Glenville, for plaintiff in error.

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

MILLER J.

The defendant was convicted on an indictment charging that he "within one year next preceding the finding of this indictment in the county aforesaid, did unlawfully bring and carry into this State and carry from one place to another within the State, for another, to wit, for one Fred D. Lance intoxicating liquors, he the said J. O. Boggs, not then and there being a common carrier, for hire, carrying pure grain alcohol and wine," etc.

From the evidence, in which there is no conflict on any material fact, it appears that the defendant and the state's witness Jack Rogers, in defendant's automobile, were traveling on the public road, when they were accosted by a man carrying a feed sack containing some bundles, who asked if he might ride in the car. The defendant said, "Climb in;" and the man got into the car. Rogers testified that the man was Turk Lance. Lance produced from among the bundles in the bag a half gallon jar of moonshine liquor, while the defendant was out of the car getting a drink of water from a spring near the road. Lance and Rogers each took a drink from the jar. Rogers testified that when defendant came back to the car, Lance offered him a drink, "and somebody came along in a car, so he didn't take a drink of liquor at that time; he drove out across a little branch and stopped, and Mr. Boggs took a drink, and, as well as I recollect, between there and somewhere up along there, took another drink, and came on down to Glenville here and got something to eat in a restaurant and went out here about the top of the hill and they took another drink." Defendant says he at first declined, and drove on "quite a bit"; but afterwards did take two or three drinks, which made him "very sick," because he was not in the habit of drinking. He admits that he must have been intoxicated.

Counsel for defendant argues that there is a variance between the facts alleged in the indictment and the proof; that the indictment alleges the liquor was carried for one Fred D Lance, while the State's evidence tends to show the passenger's name was Turk Lance, and that defendant proved his real name was Arch D. Lance.

Section 31 of chapter 32A of the Code provides that:

"It shall be unlawful for any person to bring or carry into the state or carry from one place to another within the state, or to have or carry in or on any passenger train or other vehicle of conveyance, in any manner whatsoever, whether in his personal baggage or otherwise, any quantity of intoxicating liquors, whether such liquors are intended for personal use or any other purpose."

Under the statute it is immaterial for whom the accused carries the liquor. The carrying is the offense. Therefore, the allegation in the indictment that the liquor was carried for Fred D. Lance is surplusage.

"An indictment, which charges an offense in the language of the statute, will not be held bad because it contains surplus matter." State v. Hall, 26 W.Va. 236; State v. Lusk, 16 W.Va. 767. The surplus matter in the indictment in this case could not have prejudiced the defendant. It is admitted that he carried a man by the name of Lance in his automobile, and that Lance had the liquor in his possession, to the defendant's knowledge.

It is contended that the state failed to prove intent, citing our cases of State v. Lambert, 100 W.Va. 377, 130 S.E 520, State v. Edgell, 94 W.Va. 198, 118 S.E. 144, State v. Moore, 95 W.Va. 604, 122 S.E. 147, State v. Cirrillo, 96 W.Va. 253, 122 S.E. 655, and State v. Lough, 97 W.Va. 241, 124 S.E. 606, for the proposition that criminal intent is a necessary element to the statutory crime of possessing moonshine liquor. In those cases the trial court either withdrew from the jury the question of intent by instructing them that if they believed from the evidence the defendant had in his possession the still, moonshine liquor or mash, as charged in the respective indictments, they should find him guilty, or refused instructions on the question of intent, where there was evidence of innocent or lawful...