State v. Earl Edgell.

Decision Date05 June 1923
Docket NumberNo. 4768.,4768.
Citation94 W.Va. 198
PartiesState v. Earl Edgell.
CourtWest Virginia Supreme Court
1. Intoxicating Liquors Instruction on Unlawful Possession of Moonshine Still Held Erroneous as Ignoring Felonious Purpose.

In the trial of one charged with unlawfully and feloniously owning, possessing, maintaining and having an interest in a "moonshine still," contrary to sec. 37, ch. 32-A, Barnes' Code, 1923, an instruction to the effect that if the jury believe beyond a reasonable doubt that the defendant, and another indicted jointly with him, "had in his or their joint possession the moonshine still introduced in evidence, then the jury shall find the "defendant guilty as charged in the indictment" is erroneous and ground for reversal. (p. 202).

2. Criminal Law Instruction on Unlawful Possession of Moonshine Still Invading Province of Jury Held Erroneous.

Such an insturction, Where the manual possession of the still is conceded, is peremptory, and it ignores the circumstance whether or not defendant had the still in his possession with a felonious purpose, that being a question for the jury to decide along with the other facts and circumstances of the case. (p. 202).

3. Same Instruction that Defendant Should be Found Guilty

Beyond a Reasonable Doubt Should be Given on a Request, Unless Covered by Given Instructions.

An instruction on the subject of the legal requirement of unanimity of the jury in the finding of a verdict, which, if given, would advise the jury that, if any juror, after due consideration of the evidence and consultation with his fellows, has reasonable doubt of the guilt ot the accussed in a criminal case, it is his duty not to surrender his own con- victions, simply because the other jurors are of a different opinion, is correct, and should be given upon request, unless its subject is covered by some other instruction given in the case. (p. 208).

4. Same Given Instructions Held not to Cover Instruction That Defendant Must be Found Guilty Beyond Reasonable Doubt.

The subject matter of the instruction so requested is not substantially covered by another which is addressed to the jury as a unit in the following language:

"The Court Instructs the jury that the presumption of innocence is not a mere form, to be disregarded by the jury at pleasure, but it is an essential and substantial part of the law of the land, and binding on the jury in this case; and it is the duty of the jury to give the defendant in this case the full benefit of the presumption, and to acquit the defendant unless they feel compelled to find him guilty, as charged, by the law of the land and the evidence in this case, convincing them of his guilt, as charged, beyond all reasonable doubt." (p. 208).

5. Intoxicating Liquors Ownership not Necessary Element of Unlawful Possession of Moonshine Still.

Ownership of or the right to control the moonshine still in question is not a necessary element of the guilt of one charged with its unlawful possession, (p. 209).

6. Criminal Law Remark by Court in Hearing of Jury Panel,

in Discharging Acquitted Defendant, That in its Opinion Defendant was Guilty, Held Prejudicial to Jointly Indicted Defendant to be Tried.

Under the circumstances disclosed in this case, where one is indicted jointly with another for a joint offense, and the other is tried first and acquitted, it is error prejudicial to the defendant for the trial court, in the presence and hearing of certain jurors later empaneled as members of the jury to try defendant, to make the following statement while discharging the one so jointly indicted: (p. 210).

"Wetherholt, by the grace of the jury, you have been found not guilty, but, Wetherholt, let me say to you, in my opinion you are as guilty as sin."

Error to Circuit Court, Randolph County.

Earle Edgell was convicted of unlawfully and feloniously owning, operating, possessing, and maintaining, and having an interest in a certain mechanism, device, and apparatus for the manufacture of intoxicating liquors commonly known as a "moonshine still," and he brings error.

Reversed and Remanded.

W. B. &. E. L. Maxwell, for plaintiff in error. E. T. England, Attorney General and B. Dennis Steed, Assistant Attorney General, for the State.

Meredith, Judge:

Defendant seeks to reverse the judgment of the circuit court of Randolph County by which he was convicted and sentenced on the charge of unlawfully and feloniously owning, operating, possessing and maintaining and having an interest in a certain mechanism, device and apparatus for the manufacture of intoxicating liquors, commonly known as a "moonshine still", against the peace and dignity of the state.

He relies for error upon: (1) The overruling of defendant's motion to set aside the verdict and grant a new trial on the ground that the verdict was contrary to the law and the evidence; (2) The giving of state's instruction No. 1; (3) A statement of the court made during the course of defendant's trial relative to defendant's "possession" of the moonshine still in controversy; (4) The refusal of his instructions Nos. 3, 5, and 6; and (5) Certain remarks of the trial court made in the presence and hearing of certain jurors afterwards members of the panel from which the jury which tried defendant was selected. All of these grounds are of sufficient importance to warrant some consideration.

First, as to the evidence. The evidence for the state consists of the testimony of two members of the Department of Public Safety, Clyde Hissem and Herbert Swiger. These officers were stationed at Elkins, Randolph County, and on or about August 3, 1922, while traveling from Ellamore to their station at Elkins, they discovered, about a mile beyond Ellamore, a deserted automobile parked along the side of the road. The door of the car being open, and the spot being somewhat secluded and hidden by woods, the suspicions of the officers were aroused. They therefore stopped their car at a point about 100 yards beyond the suspected automobile and returned to see what they could find. They located tracks leading into the woods; these they followed for a short distance and then hid behind some bushes to await developments. They were rewarded by soon seeing the defendant and one, Roy Wetherholt, approaching with the component parts of a still. Wetherholt was carrying the "pot and stand", defendant carried the "coil aud tub". Both were immediately placed under arrest, and were later jointly indicted upon the charge indicated in the opening paragraph of this opinion. Wetherholt elected to be tried separately, and was acquitted on the day before defendant was tried and convicted. The evidence shows that one of the officers followed the path into the woods and found the place where the still had been set up, but found no evidence of liquor having been made there; both officers testified, however, that the still was in shape to operate when it was seized.

The defense offered was to the effect that Wetherholt had discovered the still in question while picking blackberries several days before his arrest, and had determined at that time to later return for it, and sell it as junk to a dealer at Ellamore, and that it was while he was in the act of conveying it to Ellamore for that purpose that he was apprehended. Defendant says that he knew nothing of the still until a few minutes before his arrest. He was working at Gale, and on the day in question had gone to Ellamore to purchase some creoline for a Delco plant belonging to his employers. On his return he chanced to meet Wetherholt, who was going up that way in a car and who offered to take defendant along. The invitation was accepted, and they rode together about a mile to the point where defendant would turn off on his way to Gale, at which place Wetherholt suggested that they ride further on the same road to see how the car would run. Defendant consented to ride a short distance. They then drove a mile or more, turned around and returned to the place where the officers found the car. Then Wetherholt stated that he had "to go down in the brush" and asked defendant to "come on and go along". Nothing was said about getting the still, for the reason, as Wetherholt testified, that he was afraid defendant would not go for that purpose. Defendant asked no questions, and, in ignorance of their purpose, followed his companion to the still. Wetherholt picked it up and started towards the car. The underbrush was somewhat dense, however, and one piece of the apparatus caught upon a piece of laurel and fell to the ground. At the suggestion of Wetherholt, perhaps, defendant picked up the fallen piece, and it was in this situation that the officers found them. It will thus be seen that the physical facts are not in much doubt. The inference that the officers drew, of course, was that they had captured a couple of "moonshiners" in the act of changing the scene of their operations, with their equipment in their possession and control. The defense is that while the still was in their manual possession, defendant was in fact innocent of any intended wrong-doing, merely helping Wetherholt carry a still which he had found in the woods to a junk dealer, and that he was not in any sense guilty of unlawfully owning, possessing, maintaining or having an interest in a "moonshine still."

If such a state of facts were properly presented to the jury, the latter would of course be free to draw its own conclusions, and we could not disturb its findings. But, defendant has assigned several reasons why he thinks the facts were not properly submitted to the jury. Some of them involve a consideration of the state's and defendant's theory of the facts; that is why we have reviewed the evidence in some detail. Other assignments, as shown, involve extrinsic matters, All of the assignments will now be considered.

State's instruction No. 1, objected to but given, was in the following language:

"The Court instructs the...

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    ... ...          For ... other cases discussing this principle, see State v ... Staley, 45 W.Va. 792, 804, 32 S.E. 198; State v ... Edgell, 94 W.Va. 198, 210, 118 S.E. 144; State v ... Willey, 97 W.Va. 253, 259, 125 S.E. 83; State v ... Waters, 104 W.Va. 433, 437, 140 S.E. 139, State ... ...
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