State v. Carduff, 10766

• Decision Date: 26 June 1956
• Docket Number: No. 10766,10766
• Citation: 93 S.E.2d 502,142 W.Va. 18
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. John Joseph CARDUFF.

Page 502

93 S.E.2d 502

142 W.Va. 18

STATE of West Virginia v. John Joseph CARDUFF.

No. 10766.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1956.

Decided June 26, 1956.

Syllabus by the Court.

1. The failure of jury commissioners of a county to prepare the list of persons qualified for grand jury service during the annual levy term of the county court, their action in placing on the list the names of two hundred and nineteen persons instead of the maximum number of two hundred persons specified in the applicable statute, and the delay of seventy eight days after the adjournment of the levy term in preparing the list, do not render the grand jury selected from such list an unlawful or improperly constituted grand jury or vitiate the indictment returned by such grand jury, when the persons selected for grand jury service are competent and qualified for such service and the foregoing action of the jury commissioners does not result in any prejudice to any right of the defendant.

2. The provision of Section 2, Article 2, Chapter 52, Code, 1931, that the jury commissioners 'shall, at the levy term of the county court each year, and at any other time when required by the court which appointed them, or the judge thereof in vacation, prepare a list of not less than one hundred nor more than two hundred qualified persons of their county, for grand jury service,' in requiring the preparation of such list, is mandatory and strict compliance with that requirement is essential to the selection of a lawful grand jury, but, in specifying the time at which such list is to be prepared and the maximum number of qualified persons whose names are to be placed upon it, the provision is directory and substantial compliance with those requirements is sufficient in the selection of a lawful grand jury.

3. When it appears that a juror in a subsequent criminal case can fairly and impartially act and render a just verdict upon the evidence adduced at the trial, he is not disqualified to serve as such in the subsequent case merely by reason of his service as a juror or his presence as a spectator at a prior trial of a different defendant charged with a different but similar offense, although the evidence is similar and the witnesses in behalf of the prosecution are the same in each case.

4. The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice.

5. 'Contradictory statements by a witness, as to material facts, are admissible in rebuttal for the purpose of weakening or destroying the value of his testimony, provided the foundation therefor has been laid by proper cross-examination, but are not admissible as primary evidence of the controverted fact.' Point 4, syllabus, Jaggie, Adm'r v. Davis Colliery Company, 75 W.Va. 370 .

6. 'On an indictment for unlawfully selling spirituous liquors without a state license therefor, it is not incumbent on the state to prove that defendant had no license to sell. If a sale be proven, it is presumed to have been made without license, and, to justify it, defendant must produce his license.' Point 1, syllabus, State v. Tygarts Valley Brewing Company, 71 W.Va. 38 .

7. When the fact of guilt or innocence depends on the conflicting evidence of witnesses to the crime, the jury is the sole judge of the weight and the credibility to be given to their testimony.

8. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1, syllabus, State v. Bowles, 117 W.Va. 217 .

Clifford, Jones & White, Clarksburg, for plaintiff in error.

John G. Fox, Atty. Gen., Charles R. McElwee, Asst. Atty. Gen., for defendant in error.

HAYMOND, Judge.

At the November Term, 1953, of the Criminal Court of Harrison County, the defendant John Joseph Carduff was indicted for a misdemeanor by the grand jury of the county attending that court. The indictment charged the defendant with the unlawful sale of a designated quantity of whisky in the county, in October 1953, to H. E. Parks, without a state license and without authorization under the Liquor Control Act [Code, 60-1-1 et seq.] to make such sale. The defendant filed a plea in abatement by which he challenged the validity of the indictment on the ground that the grand jury which returned it was not legally constituted and for that reason the indictment was void. A demurrer to the plea in abatement was sustained and the defendant filed a plea of not guilty.

Upon the trial the jury, on December 8, 1953, returned a verdict of guilty as charged against the defendant. On May 6, 1954, the court overruled the motion of the defendant to set aside the verdict and grant him a new trial and by final judgment sentenced the defendant to confinement in the county jail for a period of one year and to pay a fine of five hundred dollars and costs.

By order entered March 9, 1955, the Circuit Court of Harrison County refused to grant the defendant a writ of error to the final judgment of the criminal court; and to that judgment of the circuit court this Court awarded this writ of error on September 12, 1955, upon the application of the defendant.

The evidence upon which the State relied to convict the defendant consisted of the testimony of troopers Parks and Smithers, members of the West Virginia Department of Public Safety, who were the only witnesses produced in its behalf in the introduction of its evidence in chief upon the trial of the indictment. Parks stationed at Kingwood, Preston County, and Smithers stationed at Point Pleasant, Mason County, were ordered to report to the headquarters of Company A of the department at Shinnston, Harrison County, on October 28, 1953, where they were directed, as police officers in plain clothes, to conduct an investigation of suspected violations of the liquor control and gambling laws of this State in Harrison County. They proceeded by automobile from Shinnston to Clarksburg and ate dinner at a restaurant in that city about six o'clock that evening. After leaving the restaurant, and between approximately six thirty and eight o'clock, they visited six different places in various parts of the city at each of which, during their presence of several minutes, Parks purchased and paid for two one ounce drinks of whisky, to which were added ice and a nonintoxicating beverage, one of which he drank and the other of which Smithers drank at each of the six places.

After leaving the last of the six places Parks and Smithers went to a place in West Clarksburg, at Number 752 West Pike Street, known as the Boots and Saddle Club which consisted of a restaurant and a bar in a room at the rear of the restaurant. They arrived there about eight thirty o'clock, entered the club through the restaurant, and while they were there for about fifteen minutes Parks met the defendant, had some conversation with him, and purchased from him two drinks of whisky. Parks paid the defendant fifty cents for each drink and Parks and Smithers each consumed one of the two drinks. During and after their visits to the first six places Parks and Smithers stopped at rest rooms and to rid themselves of the whisky they had drunk Parks vomited twice and Smithers vomited once. Each testified that though he felt the effect of the whisky he was sober and in full control of his mental and physical faculties. After the officers left the Boots and Saddle Club they did not visit it again that night and the defendant was not arrested until November 4, 1953, at which time Parks again visited the premises.

The defendant, who testified in his own behalf, denied that he owned or operated the Boots and Saddle Club on October 28, 1953. He admitted that he worked there before and until the first or second week in August, 1953; that the place was closed about that time after he had been informed by the prosecuting attorney that he 'was violating the law'; that it remained closed until about the first of October; and that he was operating a restaurant and a pool room in a room which adjoined the club on October 28, 1953. He stated that he rented the premises occupied by the club to a man named Douglas on September 3, 1953; that Douglas was still his tenant at the time of the trial; that while the club was in operation there was only one employee, a waitress named Margaret Watkins, who was in charge of the bar and served its customers; and that though he was 'in and out' of the club daily, he did not assist the waitress in her work at the bar or have any supervision or control of the club after the first or second week in August, 1953. He denied that he sold whisky to Parks or Smithers on October 28, 1953, or at any other time, or that he had ever seen Parks before November 4, 1953, when the defendant was arrested or that he had ever seen Smithers until he saw him in the courtroom a few days before the trial.

On cross-examination the defendant was asked if on the night of November 4, 1953, when coming out of the doorway of the Boots and Saddle Club with four bottles of whisky in his possession, he was arrested by Chief Deputy Matt Minard, and if, at that time, Minard asked him who was in charge of the Boots and Saddle Club, and if he told Minard that he was in charge of the club. The defendant admitted his arrest at the restaurant with four bottles of whisky in his possession by Minard at that time...