State v. Gilbert Brown

• Decision Date: 26 February 1929
• Docket Number: (No. 6271)
• Citation: 107 W.Va. 60
• Parties: State v. Gilbert Brown
• Court: West Virginia Supreme Court

107 W.Va. 60

State

v.Gilbert Brown

(No. 6271)

Supreme Court of Appeals of West Virginia.

Submitted February 19, 1929.

Decided February 26, 1929.

Criminal Law Generally, Trial Court is Under no Duty to Correct or Amend Erroneous Instruction; Failure to Correct Requested Instruction Defective in Respect Pertinent to Defense Held Erroneous; Failure of Trial Court to Modify Instruction on Character Evidence and Give it as Corrected Held Erroneous Under Evidence.

As a general rule, a trial court is under no duty to correct or amend an erroneous instruction, but where, in a crim- inal case, a defendant has requested an instruction, defective in some respect, on a pertinent point vital to his defense, not covered by any other charge, and which is supported by uncontradicted evidence; and because of the state of the evidence relied upon for conviction, and the peculiar facts and circumstances of the case, a failure to instruct on this important point, may work a miscarriage of justice, it is error for the trial court not to correct the instruction and give it in proper form.

Error to Circuit Court, Monongalia County. Gilbert Brown was convicted for posession of moonshine liquor, and he brings error.

Reversed and a new trial awarded.

R. Shirley Taylor, for plaintiff in error. Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Lively, Judge:

The defendant, Gilbert Brown, prosecutes this writ from a judgment to serve seventy days in jail and to pay a fine of $150.00, upon his conviction on a charge of possessing moonshine liquor.

About four o'clock in the afternoon of August 9, 1927, state police searched a four-story building on Richwood Avenue in Morgantown, and found on the second floor 75 gallons of moonshine liquor in and on the floor beside an old unused automobile.

The only means of access to the building was by individual ramps leading to each floor from the outside. There was also an open inside stairway leading from the third to the fourth floor. On the day of the search, the ramp door on the second floor was padlocked, and to gain entry to that part of the building the officers proceeded to the third floor where defendant was operating an automobile repair shop, lifted a housing from a hole one and one-half feet square cut in the floor, and descended a ladder to the floor below. None of the keys found in defendant's possession opened the padlock on the second floor door.

At the time of the search, the first floor of the building was untenanted, but the fourth was occupied by an automobile sales agency. The second floor had been vacant for some time prior to April, 1927, when, according to defendant, he, as rental agent in charge of the building, leased that part to a man by the name of Walter Boss to be utilized by him in storing used cars. Ross paid the rent for April, put in appearance at the premises for a few days, and then disappeared. No one saw him except the defendant, although one of the sales agents on the fourth floor testified that he had seen cars drive up the second floor ramp at night. (The defendant customarily ceased work at five o'clock in the afternoon). The accused testified that he had no key to the padlock, which had been placed on the door by Ross.

There was a furnace in a partitioned space on the second floor, and during the winter months, men from the sales agency had on various occasions gone to that floor to tend it. The furnace coal was delivered to the third floor and was thence conveyed by means of a coal chute to the floor below. At least six persons who were storing their cars with the defendant had. keys to the third floor ramp door. The defendant denied having any knowledge of the presence of the moonshine liquor. A number of defendant's witnesses testified as to his previous good character. This is substantially all the evidence bearing upon the case.

The defendant assigns as error the refusal of the court to strike out the evidence procured by means of the allegedly void search warrant. It is argued that the warrant was defective because it did not contain a sufficient description of the place to be searched. The property was described as, "that certain four-story brick building and premises located on Richwood Avenue in the city of Morgantown in Monongalia county, West Virginia." It appears from the evidence that there was no other four-story building on Richwood Avenue. The contention of the defendant is untenable. '' The prevailing rule is that the place to be searched is sufficiently described if the officer to whom the warrant is directed is able to locate it with certainty." State v. John, 103 W. Va. 148, 152. See, also, State v. McKeen, 100 W. Va. 476.

Defendant further assigns as error the refusal of the trial court to give the following instruction:

["The Court instructs the jury that an innocent man may, through malace or otherwise, be charged with crime, and his life or liability be endangered by fallacious circumstances or perjury, and he may be able to produce no evidence to prove his innocence, except his oath, and if in such case a blameless life and an unstained character are of no avail and only a mere make-weight his condition is a sad one.] The jury are therefore instructed that evidence of good character is a substantial fact, like any other, tending to establish the innocence of the defendant, and if the jury believe that the evidence of good character of the defendant as proven in this case is sufficient to raise a good and reasonable doubt as to his guilt, when considered with all the other evidence in the case, they then should acquit the prisoner."

That part of the instruction enclosed by brackets, which might be termed a preamble, was clearly improper, because argumentative, and for other reasons...