State v. Gillispie
| Decision Date | 10 December 1907 |
| Citation | 59 S.E. 957,63 W.Va. 152 |
| Parties | STATE v. GILLISPIE. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1907.
Syllabus by the Court.
It is not error to refuse an instruction which is in substance and effect a repetition of another already given.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2011.]
Upon the trial of an indictment for selling, offering, and exposing for sale without a state license therefor "spirituous liquors, wine, porter, ale, beer and drinks of like nature," under section 913, Code 1906, when it is proved that the defendant sold a drink known as "senoj" cider, it is competent to prove that other parties had handled and sold, two years before, a cider having the same commercial name and designation, from the same manufacturers, and that the same was intoxicating.
[Ed Note.-For cases in point, see Cent. Dig. vol. 29 Intoxicating Liquors, § 291.]
Upon such trial, evidence of previous sales, and that defendant had received consignments of senoj cider about the time of the alleged sales, is admissible.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 822.]
Syllabus, point 1, State v. Good, 56 W.Va. 215, 49 S.E. 121, approved and applied.
Error from Circuit Court, Webster County.
Del Gillispie was convicted of the illegal sale of liquors, and brings error. Affirmed.
W. S. Wysong, for plaintiff in error.
W. L. Wooddell, for the State.
Del Gillispie was indicted in the circuit court of Webster county for unlawfully selling and offering and exposing for sale on the _____ day of September, 1905, in said county without a state license therefor "spirituous liquors, wine, porter, ale, beer and all drinks of like nature." The defendant entered his plea of not guilty, and a jury was impaneled and returned a verdict of guilty. The defendant, by counsel, moved the court to set aside the verdict of the jury and grant him a new trial, of which motion the court took time to consider. On the next day, April 6, 1906, the court overruled said motion, and entered judgment against the defendant for a fine of $200 and three months' imprisonment in the county jail, to which judgment the defendant obtained a writ of error and supersedeas. On the trial the defendant excepted to various rulings of the court in admitting testimony on the part of the state, claimed by defendant to be inadmissible, and erroneously refusing to admit testimony offered in behalf of defendant. The court gave instructions on behalf of the state, numbered respectively 1, 2, 4, 5, 9, 10, and 11, to the giving of which the defendant objected and excepted; and the court also refused an instruction offered on behalf of defendant, marked instruction "B," to which ruling of the court in refusing said instruction the defendant excepted. A part of the exceptions taken by the defendant were saved to him in separate bills of exceptions, the first of which goes to all the instructions given on behalf of the state.
Instructions Nos. 1 and 2 are based upon point 1, syllabus, State v. Good, 56 W.Va. 215, 49 S.E. 121. No. 4 tells the jury that they should consider all the testimony offered on behalf of the state and on behalf of the defendant in arriving at a proper verdict in the case. No. 5 tells the jury they should consider all evidence offered on behalf of the state and on behalf of the defendant in determining the effect of the use and drinking of such cider, mixture, preparation, or liquid upon the person to whom it was sold, in determining whether the same would produce intoxication. No. 9 tells the jury that, in weighing the credibility and the testimony of any witness who testified in the case, they should take into consideration his interest in the result of the trial, if any he had, and demeanor in testifying, and that they were at liberty to believe or disbelieve the testimony of any witness or witnesses. In No. 10 the jury were told that it was not incumbent upon the state to prove drunkenness as a result of drinking the cider, mixture, preparation, or liquid, sold by the defendant, to justify a conviction, but that it would be sufficient to warrant a conviction of the defendant if they should believe from the evidence, beyond a reasonable doubt, that he, without a state license therefor, in said county and within a year prior to the finding of the indictment, sold any of said articles that would produce intoxication. And No. 11 tells the jury that if they should believe from the evidence, beyond a reasonable doubt, that the defendant, without a state license therefor in Webster county, and within the said time, sold spirituous liquors, wine, porter, ale, beer, or drinks of like nature, they should find him guilty as charged in the indictment. These instructions seem to be unobjectionable, and nothing is urged against them in the brief of counsel for defendant.
Bill of exceptions No. 2 goes to the ruling of the court on the refusal of defendant's instruction "B." By this instruction the court was asked to tell the jury that "they must believe beyond a reasonable doubt from the evidence that the cider in evidence would produce intoxication, before they can find him guilty, and if the jury have any doubt in their minds from the evidence as to whether or not said cider would or did produce intoxication, as alleged in the indictment, then they should find the defendant not guilty." This instruction may be misleading, because, after being charged therein concerning a reasonable doubt, they are told that if they have "any doubt" in their minds as to the intoxicating qualities of the cider they should find the defendant not guilty. The latter part of the instruction seems to be contradictory of the first part, in that the defendant should have the benefit of any doubt, however slight, and whether reasonable or not. But whether this instruction was good or bad, that portion of it which was proper to be given was fully covered by another instruction given on behalf of the defendant, where the jury are told "that if they have reasonable doubt from the evidence, whether the cider in evidence would produce intoxication, the defendant is entitled to the benefit of said doubt." It is not error to refuse an instruction which is in substance and effect a repetition of another already given.
The further exceptions of the defendant go to the admission of testimony on the part of the state, over the objections of the defendant, as set out in bill of exceptions No. 4. Witness Sizemore was asked, "Did you state before that body (meaning the grand jury) that you had bought cider from Del Gillispie about the month of September, 1905, that would intoxicate?" Witness replied, The witness then said: So that it appears that witness did not tell what he had stated before the grand jury, but simply states the fact that he believes he got some cider there that would have...
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