State v. Doc Wills.

Decision Date10 October 1922
Docket NumberNo. 4596.,4596.
PartiesState v. Doc Wills.
CourtWest Virginia Supreme Court

1. Criminal Law One Disclosing Source of Intoxicating Liquors

Immune from Prosecution, Unless Evidence Not Freely and Truthfully Given.

Under section 37, chapter 115, Acts 1921, which makes it unlawful for any person to have any quantity of "moonshine" liquor in his possession, and provides that if such person shall freely and fully disclose the name or names of any person or persons from whom he received it and give any other information that he may have relative to the manufacture or distribution of the same, and shall truthfully testify as to any such matters of information, he shall be immune from further prosecution or punishment, the accused has the right of election whether he will disclose such information and testify concerning the same. If at the first opportunity to do so, he offers to make such disclosure and to so testify, he can not be further prosecuted or punished unless after his disclosure has been made and his testimony has been taken it should appear that he has not fully and freely disclosed nor truthfully testified concerning such information. (p. 663).

2. Same Issue as to Whether One Accused of Unlawful Posses-

sion of Liquor Was Not Entitled to Immunity, Because

Evidence Not Freely Given, for the Jury.

If the State denies that the defendant has freely and fully made such disclosure or that he has truthfully testified concerning such matters of information, the issue joined thereon should be determined by the jury. (p. 664).

3. Arrest Right of Member of Department of Public Safety to

Arrest Without Warrant.

A member of Department of Public Safety may, without warrant, lawfully arrest a person, when a witness to the perpetration of the offense, whether it be a felony or misdedeanor, but he cannot, without a warrant, lawfully arrest one on mere suspicion that he is committing a misdemeanor in his presence. (p. 665).

4. Searches and Seizures One May Not be Searched Without

Warrant, Except for Evidential Property or Weapons that May Assist in Escape or Result in Violence. It is unlawful, under section 6 of article 3 of the Constitution of this State, forbidding unreasonable searches and seizures for an officer, without a warrant authorizing it, to search a person, except that one legally arrested may be searched for property connected with the offense that may be use'd as evidence against him, or for weapons or things that may assist escape or acts of violence. (p. 666).

5. Intoxicating Liquors Person May Not fee Searched on Mere

Suspicion of Violating the Prohibition Law or Without Search Warrant Unless Lawfully Under Arrest. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibition law in having "moonshine" liquor in his possession; or without a search warrant unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law. (p. 666).

6. Searches and Seizures All Unlawful Searches and Seizures


All unlawful searches and seizures are unreasonable within the meaning of the Constitutional provision forbidding unreasonable searches and seizures. (p. 666).

7. Criminal Law Evidence Secured by Illegal Means Not Ad-


Generally, the admissibility of evidence is not affected by the illegality of the means through which the evidence is obtained; but this general rule is qualified and restricted by section 5 of article 3 of the Constitution, which provides that no person in any criminal case shall be compelled to be a witness against himself, and by section 6 of the same article which inhibits unreasonable searches and seizures. (p. 667).

8. Same Neither Liquor Secured by Unlawful Search Nor Evi-

dence Thereof Admissible.

And where defendant is charged with unlawfully having "moonshine" liquor in his possession, if the liquor or evidence of defendant's possession thereof has been secured through an unlawful search of his person, without a warrant for his arrest, neither the liquor so seized nor the evidence of the possession thereof so acquired is admissible against him in a prosecution for the alleged offense. (p. 667).

9. Same Objection Against Admission of Evidence Unlawfully

Obtained Timely, if Offered on Trial.

It is unnecessary for the accused, before trial, to move the court to return the articles so illegally taken from him or to reject the evidence obtained by means of the unlawful search or seizure, in order to exclude such articles or evidence against the trial, but objection is properly and seasonably made, by motion, when they are offered on the trial. (p. 670).

Error to Circuit Court, Mingo county. Doc Wills was convicted of unlawfully having in his possession a quantity of moonshine liquor, and he brings error.

Reversed and remanded.

J. Walter Copley and Thomas West, for plaintiff in error.

E. T. England, Attorney General, R. Dennis Steed, Assistant Attorney General, and W. G. Brown, State Prohibition Commissioner, for the State.

Meredith, Judge:

Defendant was convicted of unlawfully having in his possession a quantity of "moonshine liquor," and he brings error.

But two main questions arise:

1. Does the defendant's disclosure of, or his offer to disclose and testify to, the name of the person from whom and where and when he obtained the liquor which he is charged as unlawfully having in his possession, and to give, so far as he is able, full information concerning the manufacture and distribution thereof, give him immunity from prosecution,

under section 37, chapter 115, Acts 1921, or does the State have the right to elect whether his disclosure will be accepted and further prosecution cease?

2. May evidence of the finding of "moonshine liquor," obtained by unlawful search of his person upon his unlawful arrest without a warrant, he admitted, as evidence, over his objection, upon his trial for unlawfully having "moonshine liquor" in his possession?

Promptly, upon his arraignment under the indictment, defendant tendered a plea purporting to give full information as to the person from whom, and when and where, he obtained the "moonshine liquor" which he was charged as unlawfully having in his possession, and that he had no further information as to the manufacture or distribution thereof; he, by his plea, also offered to testify as to such matters fully and freely, but the court rejected the plea. Upon the trial, being sworn as a witness, he made a like offer to testify, but this was likewise rejected. He offered two instructions to the effect that, if the jury believed from the evidence that he had fully and freely disclosed the information referred to, and had truthfully testified regarding the same, they should find him not guilty, but the court refused to give them.

The State claims it did not need his evidence; that it knew where he got his "moonshine liquor," when and the person from whom he got it; that the person who sold it to him was then under arrest; and that it had a right to elect whether it would accept or reject his offer "to turn state's evidence," as it is commonly put; that having no need of defendant's evidence, and having rejected his offer, it had the right to prosecute him for unlawfully having it in his possession. Defendant, on the other hand, claims that he, and not the state has the right to elect whether he will make disclosure, and that if he does make disclosure or offers in good faith to do so, then he is immune from prosecution or punishment. The statute under which he claims immunity is section 37, chapter 115, Acts 1921. That section makes it a felony for any person to own, operate, maintain or have in his possession, or any interest in any apparatus for the manufacture of intoxicating liquors, commonly known as a "moonshine still"; and following the form of indictment for such offense is the paragraph creating the offense with which defendant is charged. It also contains the provision for immunity and reads:

"Any person who has in his possession any quantity of 'moonshine liquor' shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than three hundred dollars, and confined in the county jail not less than thirty nor more than ninety days; provided, that if any such person shall fully and freely disclose the name or names of any person or persons from whom he received said moonshine liquor, and give any other information that he may have relative to the manufacture and distribution of the same, and shall truthfully testify as to any such matters of information, he shall be immune from further prosecution or punishment; and provided, further, that the finding of any quantity of intoxicating liquor in the possession of any person other than commercial whiskies which were obtained and stored in homes for domestic use at a time when it was lawful so to do, shall be prima facie evidence that the same is 'moonshine liquor.' " It will be observed that under this section immunity is not offered to any one charged with any violation of the prohibitory law, save that of unlawfully having in his possession any quantity of "moonshine liquor." It does not apply to any one who is charged with making; or selling; or giving away; or transporting; or violating the law in any of the numerous other ways, but applies solely to the one kind of offense, to-wit: having "moonshine liquor" in possession What did the legislature mean by the provision and what was its object? It sought to enable the state to prosecute more easily and effectively the maker or distributor of "moonshine liquor"; it provided a means of striking at its source. It knew it is much easier to locate the "moonshine

liquor" than it is to locate the "moonshiner" or the "moon- shine still" or the distributor of the...

To continue reading

Request your trial
103 cases
  • State v. McCollum, 28809.
    • United States
    • United States State Supreme Court of Washington
    • 16 Marzo 1943
    ......811, will be found interesting reviews of the. cases concerned with the questions of constitutional. guaranties against unreasonable searches and seizures as. applied to search for or seizure of intoxicating liquor. . . In. State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24. A.L.R. 1408, and State v. Owens, 302 Mo. 348, 259. S.W. 100, 32 A.L.R. 408, the authorities on the subject of. admissibility of evidence obtained by illegal search and. seizure are reviewed. The general question of the right of. ......
  • Moore v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 6 Abril 1925
    ...... States supreme court, are found in the cases immediately. following. I earnestly commend them to this court for its. careful consideration. They are State v. Marxhausen, supra;. State v. Peterson, supra; Youman v. Commonwealth, . 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303; State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A. L. R. 1398;. Hoyer v. State (Wis.), 193 N.W. 89, 27 A. L. R. 673;. People v. Castree, 311 Ill. 392, 143 N.E. 112, 32 A. L. R. 357; State v. Owens (Mo.), 259 S.W. 100, 32 A. L. R. 383; State v. Kees, supra; Opinion of WEIST, J.,. dissenting in State v. ......
  • Owens v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 17 Diciembre 1923
    ...... U. S., . 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. And the view. entertained by the supreme court of the United States has. been followed by the states of West Virginia, Kentucky, South. Carolina, Iowa, Michigan, Indiana, Washington, and Tennessee. in the following cases: State v. Wills, 91. W.Va. 659, 114 S.E. 261, 24 A. L. R. 1398; Youman v. Com., 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303;. Ash v. Com., 193 Ky. 452, 236 S.W. 1032;. Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441, L. [133 Miss. 770] R. A. 1916E 714; State v. Rowley (Iowa), 187 N.W. 7; ......
  • Olmstead v. United States Green v. Same Innis v. Same, 493
    • United States
    • United States Supreme Court
    • 4 Junio 1928 constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566, 238 S. W. 588, 20 A. L. R. 639; State v. Wills, 91 W. Va. 659, 677, 114 S. E. 261, 24 A. L. R. 1398; State v. Slamon, 73 Vt. 212, 214, 215, 50 A. 1097, 87 Am. St. Rep. 711; Gindrat v. People, 138 Ill. 103, 111, 27 N. E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT