State v. H. B. Henson

Decision Date10 October 1922
Docket NumberNo. 4593.,4593.
PartiesState v. H. B. Henson
CourtWest Virginia Supreme Court

Submitted October 3, 1922. Decided October 10, 1922.

1. Indictment and Information Indictment Charging Both

Felony and Included Misdemeanor, Held Not Bad on Demurrer.

Where a statute makes it a felony to do a certain act, and a misdemeanor to do a certain other act, the latter act being necessarily included in the former, an indictment charging both offenses in the same count is not bad on demurrer. (p. 703.)

2. Criminal Law Dilatory Plea Must be Certain to a Certain

Intent in Every Particular.

A dilatory plea to be sufficient must be certain to a certain intent in every particular, (p. 704).

3. Same Piea of Imprisonment by Federal Court in Bar of

Trial in State Court. Not Alleging Failure of Federal Authorities to Consent, Held Bad.

A plea in a criminal case charging that the defendant is, at the time it is proposed to try him, confined in jail under a sentence imposed upon him by a federal district court, for which reason he cannot properly be tr ed in a state court, is bad for failing to allege that the feleral authorities have not given their consent to such trial in the state court. (p. 704).

4. Intoxicating Liquors Laws Prohibiting Manufacture and

Sale of Intoxicating Liquors Within State's Police Power.

and do Not Receive Validity from Federal Constitution.

The laws enacted by the State of West Virginia prohibiting the manufacture and sale of intoxicating liquors were passed in the exercise of the State's police power. The legislature did not derive its power to enact the same from the Eighteenth Amendment to the Federal Constitution, nor do such prohibitory laws, since the adoption of the Eighteenth Amendment, receive any validity therefrom. (p. 705).

5. Samk Eighteenth Amendment Does Not Deprive State of

Right to Exercise Police Power by Legislation Not in Conflict Therewith.

The adoption of the Eighteenth Amendment to the Constitution of the United States does not deprive a state of the right to exercise its police power in the enforcement of its own public policy, so long as its legislation does not conflict with any of the provisions of the federal amendment and the laws enacted in pursuance thereof. (p. 705).

6. Criminal Law Violation of Prohibitory Law Offense Against

State and Federal Governments, and Conviction by One Not Bar to Prosecution by Other.

In the State of West Virginia, by a single act of engaging in the manufacture or sale of intoxicating liquors, one may be guilty of two offenses, one against the state, and the other against the United States, and the conviction and punishment of such offender for one of such offenses is no bar to his prosecution in the courts of the other sovereignty for the offense against it. (p. 706).

7. Intoxicating Liquors Evidence Held Sufficient to Sustain

Conviction for Operating Moonshine Still.

Proof that one engaged in the manufacture of intoxicating liquors in a cabin surrounded by unbroken forest, situate well up on the mountains, at a point remote from any public road, will justify a conviction of such person for operating a moonshine still under the provisions of § 37 of ch. 108 of the Acts of 1919. (p. 706).

Error to Circuit Court, Greenbrier County.

II. E. Henson was convicted of owning, operating, maintaining, possessing, and having an interest in a moonshine still, and he brings error.

Affirmed.

Thomas N. Bead, for plaintiff in error. E. T. England, Attorney General, B. A Blessing, Assistant Attorney General, and W. G. Brown, State Prohibition

Commissioner, for the State.

RITZ, Judge:

At the August term, 1921, the defendant was indicted in the circuit court of Greenbrier county on a charge of owning, operating, maintaining, possessing and having an interest in a moonshine still. He was tried before a jury upon the charge, found guilty of the felony charged in the indictment, and sentenced to serve a term in the penitentiary of this State in expiation of the crime. By this writ of error he seeks reversal of that judgment.

He contends that the judgment of the circuit court should be reversed for four reasons: First, that the court below erred in refusing to sustain his demurrer and motion to quash the indictment; second, that the court erred in refusing to sustain his plea denying the right of the circuit court of Greenbrier county to try him at the time it did, for the reason that he was then serving a sentence in jail under a conviction in the Federal District Court; third, that the court erred in refusing to sustain his plea to the effect that he had been tried in the Federal District Court for the very same offense for which he was then being tried and in that court convicted, and was then serving a sentence therefor, and that to again try him upon the indictment found in the circuit court of Greenbrier county would be subjecting him to be twice punished for the same offense in violation of both the federal and state constitutions; and, lastly, that the evidence introduced did not justify his conviction; > f a felony, it not appearing that the still operated by him was in a desert, secluded or secret place, so as to make it a moonshine still under the holdings of this Court in State v. Knosky, 87 W. Ya. 558. We will consider these propositions in the order above named.

The motion to quash the indictment, it is insisted, should

have been sustained because there is charged therein in a single count both a felony and a misdemeanor, that is to say, the defendant is charged with owning and operating a moonshine still a felony and is also charged with having a moonshine still in his possession at the time of this offense a misdemeanor, as held by this Court in State v. Tomlin, 86 W. Va. 300. The point was made in that case that the indictment could not be sustained for the reason that it alleged both a felony and a misdemeanor in a single count, but we held that where one of the offenses charged in the indictment is a felony, and necessarily includes the other which is therein charged, which is a misdemeanor, that both might be charged in the same count. Now the charge of operating a moonshine still is a felony, and it necessarily includes the possession of the still. Therefore, a defendant might be charged, not only with operating a still, but with possessing it in a single count, even though the possession would only constitute a misdemeanor, as was the case at the time of the commission of the offense for which this defendant was tried and convicted.

It is next insisted that the circuit court of Greenbrier county should not have tried the defendant at the time it did, for the reason that he was then serving a term in the Greenbrier county jail under a conviction in the Federal District Court, and that he could not be tried in any other court while serving that sentence. It is quite true that where one court, or one sovereignty, gets jurisdiction of a subject matter, or of the person of a defendant in a criminal case, another court or sovereignty may not interfere with such subject until the first court or sovereignty has exhausted its jurisdiction, without the consent of such first court or sovereignty. But it is also held that even though a defendant be under conviction in a federal court, and then serving a sentence under a judgment of such court, he may be tried in a state court for another offense by the consent of the proper federal authorities. Ponzi v. Fessenden, decided by the United States Supreme Court March 27, 1922, 42 Sup. Ct. Rep. 309. The plea filed by the defendant in this case alleged

as a fact that he was confined in jail in Greenbrier county under a sentence imposed upon him by the Federal District Court. It then states that while so confined the circuit court of Greenbrier county cannot properly take jurisdiction of him without the consent of the proper federal authorities, but the plea nowhere alleged as a fact that the proper federal authorities had not given their consent to this trial in the circuit court of Greenbrier county. This is a dilatory plea. It does not go to the merits of the case. Such pleas are not favored by the courts. They fall under the rule of strict construction, and, to be sufficient, they must be certain to a certain intent in every particular. State v. McClelland, 85 W. Va. 289. In order tc make such a plea good it would have to aver, not only that the defendant was serving sentence under conviction of the Federal District Court, but that application being made to the proper federal authorities for consent to try him in the state court, such consent was refused. There is no such allegation in the plea, and the court below properly rejected it.

The next contention of the defendant is that his plea of former conviction should have been sustained. This plea alleged that he had been tried and convicted in the Federal District Court upon a charge of making the very same liquor which is charged against him as an offense in the indictment in this case, and that by reason of the provisions of the Eighteenth Amendment to the Federal Constitution, and the Act of Congress passed to enforce the provisions of that amendment, commonly known as the Volstead Act, the doing of a single act could not constitute two offenses, for which reason he could not be lawfully prosecuted under the indictment in this case. It will at once be perceived that this contention is based upon the theory that the adoption of the Eighteenth Amendment to the Federal Constitution deprived the several states of the right to exercise their police power in respect to the prohibition of the manufacture and sale of intoxicating liquors, and that all legislation having for its purpose the prohibition of the...

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8 cases
  • Pyles v. Boles
    • United States
    • West Virginia Supreme Court
    • April 15, 1964
    ...the doctrine of 'included offenses' under which it is held that a charge of the greater includes a charge of the lesser offense. State v. Henson, 91 W.Va. 701, pt. 1 syl., 114 S.E. 273; State v. Murdock, 90 W.Va. 628, pt. 1 syl., 111 S.E. 632; State v. Tomlin, 86 W.Va. 300, pt. 2 syl., 103 ......
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  • Goff v. United States, 5080.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 4, 1943
    ...Jur. 946; 22 C.J.S., Criminal Law, § 427, p. 661 et seq.; United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857; State v. Henson, 91 W.Va. 701, 114 S.E. 273, 274; State v. McClelland, 85 W.Va. 289, 101 S. E. 472. The plea here charged no irregularity in procedure but sought to interpo......
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    • March 4, 1924
    ..." moonshine still'' for other purposes. There is nothing in this contention. It is definitely settled by our decision in State v. Renson, 91 W. Va. 701, 114 S. E. 273, wherein we distinctly held that "our state prohibition laws were passed in the exercise of the state's police power, and ar......
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