State v. D. H. Rudy.

• Decision Date: 10 March 1925
• Docket Number: (No. 5125.)
• Citation: 98 W.Va. 444
• Parties: State v. D. H. Rudy.
• Court: West Virginia Supreme Court

98 W.Va. 444

State

v.D. H. Rudy.

(No. 5125.)

Supreme Court of Appeals of West Virginia.

Submitted March 3, 1925.

Decided March 10, 1925.

1. Indictment and Information Misspelling of Words Not Fatal to Indictment, if They do not Affect Sense, and Meaning of Words Can be Determined With Certainty.

The misspelling of words or typographical errors are not fatal to an indictment, where they do not affect the sense, and the meaning of such words can be determined with certainty by a person of ordinary intelligence. (p. 445).

(Indictments and Informations, C. J, § 177.)

2 Criminal Law Searches and Seizures Instruments, Devices,-or Materials Used in Committing Crime are Competent and Legitimate evidence; Taking Instruments, Devices, and Materials Used in Committing Crime from Premises of Accused by Officer Arresting Him on Lawful Warrant is Not Illegal Search and Seizure.

The instruments, devices and materials used in the commission of a crime are competent and legitimate evidence on the trial of the accused, and the taking of them from the premises of the accused where he is arrested by an officer making the arrest on a lawful warrant, is not illegal search and seizure, (p. 445).

(Criminal Law, 16 C. J. § 1225; Searches and Seizures, 35 Cyc.

(Note: Parenthetical references by Editors, C..T.-Cyc. Not part of syllabi.)

Error to Circuit Court, Marion County. D. H. Rudy was convicted of possessing a moonshine still, and he brings error.

Affirmed.

George A. Vincent and Curt E. Amos, for plaintiff in error.

E. T. England, Attorney General and B. Dennis Steed, Assistant Attorney General, for the State.

Miller, Judge:

Defendant was convicted in the criminal court of Marion County, on an indictment charging that he "did unlawfully and feloniously own, operate, ' maintain, possess and have an interest in a certain apparatus, mechanism and device for the manufacture or intoxicating liquors commonly known as a 'moonshine still.' "

First, it is asserted by counsel for defendant that the use of the word "or" in the indictment charges the offense in the disjunctive, and that the part of the indictment following the word "or" does not charge an offense when standing alone, or if it alleges an offense, such offense would be only a misdemeanor; wherefore the indictment fails to charge the defendant with a felony. To support this proposition they cite the case of State v. Miller, 68 W. Va. 38. In that case the indictment charged in the disjunctive the doing of a number of acts, any one of which constituted an offense under the statute; and it was held that the use of the disjunctive conjunction "or," instead of the copulative conjunction "and," rendered the indictment bad for uncertainty. The rule there stated does not apply here. In the case at bar, it is evident that the use of the word "or" is simply a typographical error; and that "of".was meant. No other construction could possibly be placed on the language used. "Neither verbal or grammatical inaccuracies nor the misspelling of words in an indictment are fatal to it, where they do not affect the sense, and where from the whole context the words as well as the meaning can be determined with certainty by a person of ordinary intelligence.'' State v. Halida, 28 W. Va. 499, See, also, State v. McGahan, 48 W. Va. 438. The use of the word "or" here does not affect the sense of the language, when it is so evident that the word " of " was meant; and there can be no doubt as to the intention of the pleader.

Defendant objected to the introduction in evidence of the stills, pots, mash, hydrometers, etc., found by the officers on defendant's premises and in his possession, because the same were not mentioned in the search warrant being executed by them at the time they seized the articles in question. The warrant alleges that it was issued upon complaint and information that defendant "did unlawfully manufacture, sell, offer, expose, keep and store for sale, and barter, intoxicating liquors" as defined by the statute, in the place designated in the warrant to be searched. It is true, the warrant issued on...