State v. Cleve Ison
| Decision Date | 27 September 1927 |
| Docket Number | (No. 5987) |
| Citation | 104 W.Va. 217 |
| Parties | State v. Cleve Ison |
| Court | West Virginia Supreme Court |
An instruction which singles out and gives undue prominence to certain facts in evidence to the exclusion of other facts equally important and as decisive of the issues involved, is improper. (p. 220.)
(Criminal Law, 1G C. J. § 2479.)
A verdict not supported by evidence should be set aside, and a new trial granted, on motion. (p. 221.)
(Criminal Law, 16 C. J. § 2707.)
Error to Circuit Court, Monongalia County.
Cleve Ison was convicted of aiding and abetting in operating a moonshine still, and he brings error.
Reversed; new trial awarded.
The defendant was tried on an indictment in two counts. The first charged him with unlawfully and feloniously owning, operating, maintaining, possessing and having an interest in a moonshine still; the second with aiding and abetting in the operation and maintenance of a moonshine still. The verdict of the jury was that defendant was not guilty of any of the unlawful acts charged in the first count, but was "guilty of aiding and abetting in the operation of a moonshine still as charged in the second count of the within indictment,.'
Defendant lived upon a small tract of about six acres of land, which he owned. Four state officers, in the nighttime, entered upon his premises with a search warrant, and found in his home a small quantity of moonshine liquor, and, as testified.to by one of the officers, "just outside the door set some kind of a vessel on the ground that had cooked corn in it, and up by the chicken pen was a keg that had corn in it that wasn't cooked and water on it." In the opinion of one of the officers the corn found near the door, "had been cooked, evidently from the smell of it, it had been soured before it was cooked, in my judgment." In the chicken yard, covered with leaves, were two five gallon kegs filled with moonshine liquor. On the property of another, who was a witness on the trial, a short distance from a barbed wire fence separating his land from defendant's lot, by the side of a fallen tree, partly covered with leaves, two of the officers found two boilers, lids for the same, and copper coils, which the officers claimed would have made up two complete stills when properly fitted together. Some of the parts were in a coffee sack. There is no evidence when, where, or by whom the stills had been used.
Defendant testified that he had the corn there to feed his hogs and chickens. Other witnesses, living in the vicinity, corroborated him in this, had seen the hogs and chickens fed from these vessels. There was no evidence, other than the facts above mentioned, to connect defendant with the manufacture of moonshine liquor.
By their verdict the jury found that the defendant at the time of the alleged offense did not own or have an interest in a still, and that he was not guilty of operating or maintaining one. On what evidence then did they find that he aided and abetted some one else? The presence of the cracked corn, claimed to be mash, would not support that charge. Other than the actual presence of the parts of stills, there was no evidence of the operation of a still in the vicinity. And the possession of the moonshine liquor by defendant did not support a charge of aiding and abetting in the operation of the still on which it was made. One who purchases liquor which is sold in violation of law is not guilty of aiding and abetting in the offense of unlawful selling. Black on Intoxicating Liquors, Sec. 381; State v. Miller, 26 W. Va. 106. If defendant had purchased the liquor from the manufacturer, or had it in his possession for the purpose of distributing or selling it for the distiller, or for any other person, that fact would not be evidence of the statutory offense of aiding or abetting in the operation of a moonshine still. The jury found, inferentially, that he did not manufacture the liquor found on his premises. What evidence is there then to connect him with the manufacture of it in any way? If, as the jury found, defendant did not own the still, have it in his possession, or any interest in it, and had not operated the same, to sustain the charge laid in the second count of the indictment, it would be necessary to prove that some other person had operated a still, and that defendant aided him in the operation. This the state failed to do.
The defendant complains of the refusal of the trial court to give to the jury the following instructions:
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