State v. G. M. Joseph.

• Decision Date: 27 October 1925
• Docket Number: (No. 5344.)
• Citation: 100 W.Va. 213
• Court: West Virginia Supreme Court
• Parties: State v. G. M. Joseph.

100 W.Va. 213

State

v.G. M. Joseph.

(No. 5344.)

Supreme Court of Appeals of West Virginia.

Submitted October 13, 1925.

Decided October 27, 1925.

1. Indictment and Information Indictment in Statutory Form, for Owning, Maintaining or Having Any Interest in Moonshine Still, Held Good on Demurrer.

An indictment for owning, operating, maintaining or having possession, or any interest in, any apparatus for manufacture of intoxicating liquors, commonly known as "moonshine still", or any device of like kind or character, in the form prescribed by section 37 of chapter 32-A, Code, is good on demurrer, (p. 216.)

(Indictments and Informations, 31 C..1. § 260.)

2. Same Indictment for Owning Moonshine Still, Count Charging Accused With Aiding and Abetting in Operation of Such Still May be Joined.

A count charging the defendant with aiding and abetting in the operation of a "moonshine still" may be joined in the foregoing indictment, as the offenses are of the same general nature. (p. 216.)

(Indictments and Informations, 31 C. J. § 341.)

3. Same Omission of Names of Witnesses, on Whose Evidence Indictment Was Found, From Foot Thereof Held Not to Vitiate it.

The statute directing the names of the witnesses, on whose evidence the indictment was found, to be written at the foot thereof, is directory, and the omission of such names does not vitiate the indictment, (p. 216.)

(Indictments and Informations, 31 C. J. 129.)

4. Criminal Law Indictment and Information Refusal of Motion for Bill of Particulars Discretionary, and Ruling Not Disturbed Unless it is Clear Accused Was Prejudiced Thereby.

Refusal to grant defendant's motion for a bill of particulars in a criminal case is within the sound discretion of the trial court, and the appellate court will not reverse for that reason unless it is clear that the defendant has been prejudiced thereby, (p. 216.)

(Criminal Law, 17 C. j. § 3575; Indictments and Informations, 31 C. j. § 308.)

5. Indictment and Information If Statute Enunciates Series of Acts, Either of Which Separately or All Together May Constitute Offense, All Such Acts May be Charged in Single Count; if Series of Acts, Which Separately or All Together May Constitute Offense, Are Charged in Single Count, Election Not Generally Necessary.and could not be found

Where a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that, notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. In such case, the prosecution, as a general rule, will not be put to an election. (p. 219.)

(Indictments and Informations, 31 C. J. §§ 323, 358.)

6. Criminal Law On Evidence of Contents of Lost Search Warrant, Failing to Show That it Was in Legal Form and Properly Issued, Articles Taken Thereunder and Testimony of Officers Making Search Are Inadmissible.

Where, in the prosecution of a criminal case, the state does not produce the search warrant under which certain incriminating evidence was secured, but offers evidence of its loss and contents, which fails to show that it was in legal form and issued and signed by proper authority, the articles taken thereunder and the testimony of the officers making such search are inadmissible against the defendant, (p. 216.) (Criminal Law, 16 C. J. § 1110.)

7. Same Instruction Relating to Unanimity of Verdict Should be Given in Criminal Case, if Requested, if Not Couched in Such Terms as Would Invite Jury to Disagree.

An instruction relating to the unanimity of the jury verdict should be given in a criminal case, if requested, provided it is not couched in such terms as would invite the jury to disagree, (p. 221.)

(Criminal Law, 16 C. J. § 2402.)

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

Error to Circuit Court, Monongalia County.

G. M. Joseph was convicted of owning, operating, maintaining, possessing, and having an interest in a moonshine still, and he brings error.

Judgment reversed; verdict set aside; new trial awarded.

Charles T. Herd, for plaintiff in error.

Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

G. M. Joseph, hereinafter referred to as the defendant, wras indicted at the April term, 1924, of the circuit court of Monongaiia county under two counts: (1) for owning, operating, maintaining, possessing and having an interest in a "moonshine" still, and (2) for aiding and abetting in the operation and maintenance thereof. At the trial the state elected to try on the first count of the indictment. The jury returned a verdict of guilty as charged in said count, and thereupon the defendant was adjudged to pay a fine and sentenced to imprisonment in the penitentiary. He brings the case here on writ of error.

The sheriff of Monongalia county, together with two deputies, according to their testimony, armed with a search and seizure warrant issued by a justice of the peace, upon the search of defendant's premises, found a "moonshine" still and a quantity of "moonshine" liquors, as well as several empty barrels that had had mash in them, in the garage and another outbuilding. At the time the officers wTent to the home, the defendant was absent, but, on informing the wife of the object of their visit, and that they had a search warrant, she requested that she be permitted to communicate with her husband who was at his office in the city near by. This request was granted. After she had talked with her husband over the telephone, out of hearing of the officers, she returned and informed them that her husband would be there in five minutes, and asked them to await his return. The officers very considerately waited for about forty minutes but he did not appear, and thereupon the search was made of the house and premises of the defendant with the above result. The still and moonshine liquor and other incriminating testimony were offered in evidence by the state at the trial. The defendant introduced evidence to support his claim that the apparatus had been planted on his premises by another without his authority.

The sufficiency of the indictment is challenged. This objection goes to the form, joinder of offenses, and the failure to note thereon the names of witnesses on whose testimony the indictment was found. The indictment is in the prescribed statutory form and in the language of the statute. Code, chap. 32-A, sec. 37; State v. Miller, 89 W. Va. 85. It is sufficient. The two offenses joined in separate counts are of the same general nature. This meets the requirements of the decisions on that point, State v. Miller, supra; State v. Calhoun, 67 W. Va. 666; State v. Jarrell, 76 W. Va. 263; State v. Shelton, 78 W. Va 1; State v. Larue, 98 W. Va. 677. The last contention is without merit. The statute directing the names of the witnesses on which the indictment was found to be written at the foot thereof is directory, and the omission to do so does not vitiate the indictment. State v. Enoch, 26 W. Va. 253; State v. Shores, 31 W. Va. 491. The demurrer to the indictment was therefore properly overruled.

Did the court err in refusing to require the state to furnish a bill of particulars as requested by the defendant? We think not. Whether or not to require the state to furnish such bill of particulars is addressed to the sound discretion of the trial court. State v. Counts, 90 W. Va. 338. The record does not show any abuse of that discretion.

The next six exceptions relate to the admission of evidence obtained by the officers under an alleged search and seizure warrant. All three officers who made the search testified that such search was made under a warrant, and that it was in the possession of Officer Core. It was not produced at the trial. The officers testified that it had never been returned to the office of the justice, and was mislaid in some way in the of- fice of the sheriff, and could not be found. Its loss being shown its contents and validity may be established by satisfactory evidence. State v. Neat, 96 W. Va. 456. Did the state bear the burden cast upon it? In the last mentioned case the court held: "Where in the prosecution of a criminal case the state does not produce a search warrant under which certain incriminating evidence was secured, but by undisputed proof explains the loss thereof, and shows that it was in proper form to authorize the search of the defendant's premises, the articles seized and the testimony of the officers making such search are properly admissible against the defendant." In that case the justice who issued the warrant testified with clarity and precision as to the contents of the warrant. To illustrate the character of the warrant used, he introduced with his evidence a printed form of warrant and testified that it was the same form of warrant as wras issued in that case. In the instant case, an attempt was made to show by tiie testimony of the officers the issuance and contents of the warrant under which the evidence, objected to here, was procured. It is vitally necessary to the validity of such warrant that it has been issued upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized. If the warrant be not so issued, and does not show these necessary particulars it is void, and the search and seizure thereunder are violative of Section 6, Article 3, Constitution of West Virginia, and the evidence so acquired shall not be used for any purpose. State v. Wills, 91 W. Va. 659. Under our statutes search warwants may be issued not only for liquors (Chap. 32-A, Code), but for personal property stolen, embezzled or obtained by false pretenses, counterfeit coin, gaming apparatus, etc. Chap. 155, Code. There was an entire absence here of testimony as to the thing for which the property was...