State v. Calhoun
| Decision Date | 18 October 1910 |
| Citation | 69 S.E. 1098,67 W.Va. 666 |
| Parties | STATE v. CALHOUN. |
| Court | West Virginia Supreme Court |
Rehearing Denied Jan. 10, 1911.
Syllabus by the Court.
An indictment charging that defendant did unlawfully sell, offer and expose for sale, wine, porter, ale, beer and drinks of like nature, not then having a state license therefor, is good under the statute, and not bad because of duplicity.
Duplicity is not available on a motion in arrest of judgment.
A motion to strike out all the evidence of a particular witness, or the whole of the evidence of one party, should not prevail, although it may contain some illegal or incompetent evidence, if it also contain other evidence proper to go to the jury. The motion in such case should be applied to the particular evidence regarded illegal or incompetent.
On the trial of one indicted for selling illegally intoxicating liquors, until required by motion of defendant to elect which sale it will rely on for conviction, the state may prove and rely on any sale made within one year next prior to the finding of the indictment.
Though there be error in instructions given on behalf of the prevailing party, yet the judgment will not for this reason be reversed if it appears that the same error was introduced into the record by instructions given at the instance of or was invited by the other party.
On the trial of one indicted for selling illegally intoxicating liquors without a state license therefor, proof of a charter of incorporation issued to defendant and others for a social club, as provided by chapter 32, § 120-a, Code Supp. 1907 (Code Supp. 1909, § 1042a), it being also proven that defendant made or authorized such sales, or was concerned therein, will constitute no defense. To constitute good defense there must be proof also of regular organization under such charter, assessment and payment of the license taxes assessed, as prescribed by said section, and that the sales proven to have been made, were limited to regular members of such club.
Error to Circuit Court, McDowell County.
A. L Calhoun was convicted of an illegal sale of intoxicating liquors, and he brings error. Affirmed.
Anderson Strother & Hughes, for plaintiff in error.
Wm. G Conley, Atty. Gen., R. R. Smith, and J. A. Seaman, for the State.
The indictment, in the language of the statute, charges that defendant on the -- day of August, 1908, did unlawfully sell offer and expose for sale wine, porter, ale, beer and drinks of like nature, *** not then and there having a state license therefor. Issue was found on defendant's only plea, not guilty, and on the trial the jury found him guilty as charged.
On the trial below defendant made a motion in arrest of judgment, which was overruled, alleging, as he does here, that the indictment, in one count, charges several and distinct offenses. This is not a new question, and the motion was properly overruled. State v. Marks, 65 W.Va. 526, 64 S.E. 616, and cases cited. Duplicity is not available on a motion in arrest of judgment. State v. Ball, 30 W.Va. 382, 388, 4 S.E. 645.
The next point made is that the court below should have sustained defendant's motion to set aside the verdict and award him a new trial. It is contended that defendant's motions to strike out the evidence of each particular witness, and to strike out the whole evidence of the state should have prevailed. Motions were made to exclude the evidence of some witnesses, but not of each witness, the grounds relied on not appearing. Here it is argued that these motions should have prevailed because some of the witnesses testified as to other sales than those made on August 16, 1908. The motions were general, applying to the whole evidence, and not alone to the evidence of sales made on other days. When these motions were made the request that the state elect which sale it would rely on for conviction had not been made, nor does it appear that any motion was made to the court to require the state to make such election. When the request was made, according to the transcripts of the evidence, the state elected to rely on the sales made on August 16, 1908; in another part of the same bill of exceptions it is recited that "the state, by its counsel, elected to rely upon the sale made on the 16th day of August, 1908," not specifying which of the several sales proven to have been made on that day. The evidence of all these witnesses contained other matters proper to go to the jury, and the motions being general, and not confined to the matter of sales, were, for this reason, if for no other, properly overruled. State v. Hood, 63 W.Va. 182, 185, 186, 59 S.E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964. Until the state, on motion of defendant, was required by the court to elect the particular sale it would rely on to sustain conviction, it might prove and rely on any sale made within one year prior to indictment found. Loftus v. Commonwealth, 3 Grat. (Va.) 631, Ann. 808; State v. Chisnell, 36 W.Va. 664, 15 S.E. 412.
The next point relied on is that the court misdirected the jury by the state's instructions number one, two and three given. These instructions are not very artistically drawn. If on proper motion the state had been confined to some particular sale made on August 16, 1908, and defendant's instructions had not repeated the most important error of which he complains in the state's instructions, the point would have force, and might require reversal of the judgment. The principal point is that neither of these three instructions limited the jury to any particular sale; another is that by number one the jury was told that if defendant individually or as president or stockholder of the Keystone Political Social Club, by himself or through the agency of some other person committed the offense charged, or, as in number three, if he was benefited personally therein, he was guilty, notwithstanding he was a stockholder or officer of said club. Still another point is that instruction number two was based in part on the theory that defendant had made sales to said social club, when, as it is claimed there was no evidence of any such sale made on August 16, 1908, to support such theory.
On the principal point the court was not called upon, by any motion addressed to it, to require the state to make an election. The request was apparently to the prosecuting attorney. His reply, according to one part of the record, was that he elected to rely on the sales made on August 16, 1908; according to another part, that he would rely on the sale made on that day. No exception was noted to either reply. Both are contained in the same bill of exceptions. The state's instructions number two and three complained of did not confine the jury to any particular sale, or to a sale made to any particular person; but number one did confine them to August 16, 1908. It was decided in State v. Chisnell, 36 W.Va. 659, 15 S.E. 412, relied on by defendant, that when in a case like this "evidence of more than one sale is given, on request of the defendants at the close of the state's evidence, the court should compel the state to elect the particular sale on which it will rely for conviction, and then exclude evidence of other sales." This, we think, the correct practice. But a defendant should avail himself of this right by motion addressed to the court; otherwise any sale proven to have been made within the statute of limitations will support a verdict of guilty. But if we treat the request of defendant, and the election or elections of the state as the equivalent of a motion to and ruling by the court thereon, how, in the face of this conflict in the record, are we to dispose of this point of error? There was evidence of sales made on other days than August 16, 1908, and there was evidence of sales to different persons made on that date. If we had before us the state's instructions alone we might with some consistency, perhaps, say that the state should have been limited to some sale,...
To continue reading
Request your trial