State v. Brown

• Citation: 114 S.E. 372,91 W.Va. 709
• Decision Date: 10 October 1922
• Docket Number: 4548.
• Parties: STATE v. BROWN.
• Court: Supreme Court of West Virginia

114 S.E. 372

91 W.Va. 709

STATE v. BROWN.

No. 4548.

Supreme Court of Appeals of West Virginia.

October 10, 1922

Submitted October 3, 1922.

Syllabus by the Court.

One accused and indicted for an offense under sections 2 and 3 of chapter 32A (secs. 1281, 1282) of the Code, cannot be convicted of an offense under section 37 of said chapter, as added by chapter 108, Acts 1919, and chapter 115, Acts 1921 relating to moonshine stills and moonshine liquors, and the ownership and possession thereof and of the materials used in the manufacture of such liquors.

If a search warrant describes the house or premises to be searched substantially as alleged in the affidavit or information on which it was issued, the warrant will not be affected by a slight variance in the description between affidavit and warrant.

Where the offense charged is a continuous one and the date thereof not of the essence of the offense, the fact that a warrant for the arrest of the accused and for the search of his premises lays the date on a day subsequent to the date laid in the affidavit or complaint, will not vitiate the warrant or render it void.

The fact that the officer making a search under a lawful warrant therefor may have declined to exhibit his authority to the wife of the accused, he being absent, will not render the search and seizure unreasonable within the provisions of sections 5 and 6 of article 3 of the constitution. Unless the statute so provides an officer charged with the execution of a lawful warrant therefor is not obliged to exhibit the warrant as a prerequisite to his right to execute the writ.

Section 9, chapter 32A (sec. 1288), of the Code, is not void and in contravention of section 6, article 3, of the Constitution because it requires the justice or other officer, upon complaint as provided in the statute, to issue his warrant. If the affidavit required is in accordance with the statute probable cause will be shown thereby, and the justice or other officer need not inquire further into the fact of the alleged offense.

Error to Circuit Court, Pocahontas County.

Charley Brown was convicted of a violation of the prohibitory liquor law, and he brings error. Reversed and remanded.

P. T. Ward and H. S. Rucker, both of Marlinton, and W. B. & E. L. Maxwell, of Elkins, for plaintiff in error.

E. T. England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for the State.

MILLER J.

The indictment, found on June 7, 1921, charged that defendant, within one year next prior to the finding of the indictment, "did unlawfully manufacture (other than by 'moonshine still'), sell, offer, keep, store and expose for sale and solicit and receive orders for liquors, and absinthe and drink compounded with absinthe, against the peace and dignity of the State."

Upon the trial, on defendant's plea of not guilty, he was found guilty as charged, upon which the judgment of imprisonment in the county jail for two months and for a fine of one hundred dollars and costs, now complained of, was pronounced.

It is manifest that the indictment was based on sections 2 and 3, chapter 32A, of the Code (secs. 1281, 1282); for by its averments it excludes the offenses prescribed by section 37 of said chapter, as amended by chapter 108, Acts 1919, making it unlawful for any person to own, operate, maintain or have in his possession, or any interest in any apparatus for the manufacture of intoxicating liquors, commonly known as a moonshine still, or any device of like kind or character; also making it unlawful for any person to have in his possession any quantity of moonshine liquor. The act of 1921, (chapter 115), making it unlawful for any person to make or have in his possession, or on his premises, or on the premises of another, or elsewhere, or to have under his control, or an interest in any mixture of fermenting substances or materials, such as corn meal, or other crushed or ground cereals, fruits or roots combined with water or other liquids or substances, commonly known as "mash," or any mixture of like kind or character for the purpose of making intoxicating liquors, was not in effect at the time of the alleged offense.

Said section 3 also prescribes the form of indictment which may be used in charging the offenses named therein, and which conforms to the terms and provisions of that part of the act defining the offenses inhibited. At the time the statute was passed prescribing the offenses charged in the indictment before us, the later statute relating to the ownership of stills and the manufacture and possession of moonshine liquor had not been enacted.

The only evidence introduced by the State in support of the indictment consisted of the testimony of L. S. Cochran, town sergeant of the town of Cass, as to what he found in the house occupied by defendant as a dwelling house, on the execution of a warrant issued by a justice for the arrest of defendant and others, which also included a warrant for the search of defendant's house at a specified location and the seizure of all liquors found therein, together with all vessels, bar fixtures, screens, glasses, bottles, jugs, and other appurtenances apparently used in the sale, keeping and storing of liquors contrary to law. The evidence consisted solely, first, of a portion of about twenty-five gallons of what the officer called mash found in a barrel behind the door in one corner of a room, covered when found with a cloth, the barrel being about half full; the portion produced was contained in a jug filled and corked up by the officers; the residue, which became decayed, was thrown out before the trial; second, a stove boiler and a pan, and the contents of the pan, which was clay; also a worm. The witness said the boiler was found in the next or middle room, where the stove was, under a table; the pan was found in the room where the barrel was located. Nothing else found was taken from the house except a couple of shot guns and a pistol. The so-called mash, according to the sergeant's evidence, consisted of cracked corn meal in water, and from its appearance and taste it contained sugar. The evidence of the sergeant was corroborated by one J. L. Warwick, who had been a town sergeant and who assisted Sergeant Cochran in making the search and the seizure of the materials and appurtenances taken from defendant's house.

There is not a particle of evidence...