State v. D. E. Thomas

CourtSupreme Court of West Virginia
Citation105 W.Va. 346
Decision Date20 March 1928
Docket Number(No. 5937)
PartiesState v. D. E. Thomas

1. Searches and Seizures Seizure May be Made Without Warrant Where Contraband Subject-Matter is Disclosed to Senses; Officers Smelling Still May Search and Seize Without Warrant (Const, art. S, § 6).

Our Constitutional guaranty against unreasonable searches and seizures, providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or things to be seized, does not prohibit a seizure without such warrant, where there is no need of a search, but the contraband subject matter is fully disclosed and open to any one of the senses, (p. 348.)

(Intoxicating Liquors, 33 C. J. § 376.)

2. Criminal Law Instruction That if Evidence Showed Defendant Owned, Etc., Moonshine Still or Any Interest Therein as Charged in Indictment to Convict, Held Sufficiently to Charge Intent, Where Indictment Sufficiently Charged Intent; Indictment Incorporated by Reference in Instruction Becomes Part Thereof. r' Where an indictment charges a defendant with unlawfully and feloniously owning, operating, maintaining, possessing, and having an interest in a certain apparatus, for the manufacture of intoxicating liquors, commonly known as a moonshine still, an instruction telling the jury that, if they believed from all the evidence and beyond a reasonable doubt that the defendant owned, operated, maintained or had in his possession, or had any interest in, a moonshine still, as charged in the indictment, then they should find the defendant guilty, sufficiently charges intent, for the indictment becomes a part of said instruction, and must be read in connection therewith, (p. 351.)

(Criminal Law, 16 C. J. § 2491.)

3. Same Instruction That Although Indictment Charged in Conjunctive Owning, Operating, Etc., Moonshine Still, Proof of Any of Such Offenses Would Warrant Conviction, Held Not Defective as Lacking Element of Intent, in View of Prior Instruction Incorporating Indictment by Reference. In such case, a second instruction, the primary object of which was to tell the jury that, although the indictment charged the commission of said offenses in the conjunctive, proof of any one of the said offenses beyond a reasonable doubt, was sufficient to warrant a verdict of guilty, is not open to the criticism that it lacks the element of criminal intent, when read in connection with the preceding instruction, (p. 351.)

(Criminal Law, 16 C. J. § 2493.)

4. Same Refusal of Instruction to Same Effect as One Given Fully Covering Law Applicable Held Not Error.

Where one instruction has been given, fully covering a principle of law applicable to the case, it is not error to refuse another instruction to the same effect, although differently expressed, (p. 352.)

(Criminal Law, 16 C. J. § 2506.)

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

Hatcher, Judge, absent.

Error to Circuit Court, Marion County.

D. E. Thomas was convicted of owning-, operating, maintaining, possessing, and having an interest in a moonshine still, and he brings error.

Affirmed.

James A. Meredith and Ward Lanham, for plaintiff in error. Howard B.. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.

Woods, Judge:

Defendant was convicted in the criminal court of Marion county and sentenced to two years in the penitentiary and fined, on an indictment for unlawfully and feloniously owning, operating, maintaining, possessing, and having an interest in, etc., a moonshine still. A writ of error having been refused by the circuit court of said county, defendant prosecutes error to this Court.

On or about four o'clock in the afternoon of December 12, 1925, E. L. Hawkins, a Federal prohibition officer, together with state trooper Gladwell and certain other officers, being in possession of a warrant issued on the information of Gladwell for the search of the house and premises of defendant, proceeded to Peacock Terrace, a suburb of Fairmont, for the purpose of executing the same. On alighting from the car, they were at once apprised by the odor present that a moonshine still was under operation in the immediate vicinity. And, by means of the increasing pungency of this odor near the dwelling they were led into the house and upstairs to the bathroom where a sixty gallon moonshine still was found in operation, and where, as one officer puts it, '' The fumes of the odor from it was so strong we could hardly stay in the room." The still was actually going at the time and the liquor from the coil was dripping into a bucket and wash boiler. According to Gladwell: '' The hot plate was setting down in the bathtub and the still was setting on the hot plate. There was a rubber hose running from the hot plate to a gas connection. The gas was turned on and burning. The still was filled up with mash. There was a rubber hose running in at the top and the water running out and running into the bathtub under the still and then running down the drain pipe. The liquor was running from the still into charcoal, and from that into a copper wash boiler setting there." Twenty-three gallons of apple brandy whiskey, three full barrels of apple mash, five empty mash barrels, 200 pounds brown sugar, ten empty whiskey cans, two funnels, one copper wash boiler used to catch whiskey in, three pieces rubber hose used on the still, and several small kettles and dippers were also found in the house. Defendant was not present at the time. However, he wras soon after apprehended on his way home, and after reaching the house, said to one of the officers, "Well, boys, you got me. I am in a hell of a shape with this stuff on me." He did not testify.

The principal ground of error stressed is that the search warrant is invalid. We have said that on the question of its validity the warrant itself is the best evidence. State v. Slat, 98 W. Va. 448. The warrant under consideration here is admittedly valid on its face. It purports to have been issued on a complaint duly sworn to by a member of the Department of Public Safety. The sole attack on its validity is that the affidavit was not in fact sworn to, and is therefore violative of the provision of our Constitution that no such warrant shall issue "except upon probable cause, supported by oath or affirmation." Article 3, Section 6. Such attack is founded alone on the cross-examination of the justice wdio issued the warrant, as follows: "Did Mr. Glad well swear to this complaint? A. Well, I don't know as I swore him to that particular complaint, no sir. Q. The fact of the matter was, that Mr. Glad well merely signed the complaint and you acknowledged it, but did not swear him. Is that not true? A. Yes, sir. Q. Did you say that was true? A. That is true, yes, sir.'' The State seeks to uphold the warrant on the grounds (1) that it is against public policy to permit the officer to impeach his act, and (2) even if not so, that the evidence of the justice here relied on is insufficient to overbear a paper valid on its face. Counsel for both the State and the defendant admitted in argument on the hearing that the exact point raised here has never been determined by this Court. However, we do not decide this question, since our view of the case makes it immaterial.

From the evidence, we find that as the officers alighted from their car, odor from a moonshine still in operation was in evidence. Hawkins, stated "As soon as we got out of the car, I smelled the...

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    ...no need of a search, but the contraband subject matter is fully disclosed and open to any one of the senses.' Point 1 Syllabus, State v. Thomas, 105 W.Va. 346 (, 143 S.E. 6. When the evidence fails to show that a police officer had probable cause to make a warrantless arrest, the search of ......
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