State v. Henderson

• Decision Date: 15 March 1927
• Docket Number: 5660.
• Citation: 137 S.E. 749,103 W.Va. 361
• Parties: STATE v. HENDERSON.
• Court: West Virginia Supreme Court

137 S.E. 749

103 W.Va. 361

STATE v. HENDERSON.

No. 5660.

Supreme Court of Appeals of West Virginia.

March 15, 1927

Submitted March 8, 1927.

Rehearing Denied May 4, 1927.

Syllabus by the Court.

As this court has often held, alleged errors in the admission or rejection of evidence are waived, if not made the ground of a motion to set aside the verdict, or incorporated in special bill or bills of exception showing the evidence and the ruling of the court thereon.

Indictment in form set out in Code, c. 32A, § 37, for owning and operating moonshine still, alleging offense to be within one year preceding finding of indictment, was sufficient in substance and form.

Error to Circuit Court, Taylor County.

L. B Henderson was convicted of owning and operating a moonshine still, and he brings error. Affirmed.

W. P Samples, of Grafton, for plaintiff in error.

Howard B. Lee, Atty. Gen., and J. Luther Wolfe, Asst. Atty. Gen for the State.

LIVELY, J.

L. B Henderson was found guilty by a jury of owning, operating etc., a moonshine still, and was sentenced to imprisonment for three years.

In defendant's petition for this writ errors are charged relating to the introduction and refusal of evidence, and the refusal of the motion to set aside the verdict, and to the overruling of his demurrer to the indictment. The argument in the brief is upon the introduction of illegal evidence obtained by the officers when the premises of John Henderson (the father of defendant) were searched under a search warrant claimed to be void, and to the introduction of an alleged confession by defendant.

The indictment is in the form set out in section 37, c. 32A, Code, and, while the exact date of the offense is not charged, it is alleged to be within one year next preceding the finding of the indictment. It is sufficient in substance and form.

The pertinent facts are: Bolyard, a deputy sheriff, accompanied by two state policemen having a search warrant, went to the premises of John Henderson, the father of defendant, in May, 1925, and found a complete still about 250 yards from the dwelling house, in a nearby woods, and about 50 gallons of mash in the same place, all on John Henderson's farm of about 60 acres. The still bore evidence of recent use. In the dwelling the officers found about one gallon of moonshine liquor, some of it in a dresser drawer in the sitting room. John Henderson was not at home. Defendant, 27 years old, lived at his father's home and worked at night at a glass plant about 2 1/2 miles away. He and Sam Ball, a neighbor, were at the house in a room where defendant was preparing to shave, and where some of the liquor was found. They were arrested and taken to jail. This was on Saturday, and the following Monday defendant signed a statement in the office of the prosecuting attorney and in the presence of defendant's father, younger brother, Bolyard, the deputy sheriff, and the prosecuting attorney, in which he stated that he and Sam Ball operated the still the preceding fall on the Bradford Loar place; later moved to the Bill Griffey place, and used it there, and then moved it to where the officers found it and last used it on the morning of the arrest and made the liquor which the officers found; and that no person other than Ball and himself "had anything to do with the still."

When defendant went upon the stand he denied knowing anything about the still, its use, ownership, or operation, except that Ball told him about noon of the day of the arrest before the officers came that he (Ball) had brought a still to the farm. He says he made the statement and swore to it, because Bolyard told him that they would send his father to the penitentiary, and he signed the statement to save his father, and that it was a false statement made on Bolyard's statement that he would give him (defendant) a square deal. The father, brother, and Earnie Luzadder were present in the jail and heard the conversation between Bolyard and defendant prior to going to the office of the prosecuting attorney where the statement was prepared and signed. The father and brother, and perhaps others, were present at the office when the statement was prepared and signed. There is evidence corroborative of defendant in respect to the making of the confession in writing. None of these witnesses, however, say that any threats or inducements were made or offered by Bolyard or the prosecuting attorney. The substance is that Bolyard told defendant it looked as if the father would perhaps be convicted, the still having been found on his premises, and that, if defendant told the true facts, he would get a square deal. Bolyard says that, on the day of the arrest on the way to jail, defendant told him that he and Sam Ball were the only persons interested in the still. He says he told defendant in the presence of the father, brother, and Luzadder to tell the truth about the matter. Newlon, the sheriff, on one occasion heard Bolyard and the father tell defendant to tell the truth about the matter, without telling him what to say. The father and brother had been in conference with the prisoner on the day before the alleged confession, the deputy sheriff being present.

The errors urged and argued in the brief are: (1) It was error to allow the officers to give evidence of the finding of the still, mash, and liquor; and (2) to admit the confession. We do not find any special bill or bills of exception setting out the evidence objected to, and the ruling of the court thereon; nor was the introduction or refusal of evidence made a ground for the motion to set aside the verdict and grant a new trial. Can we consider these alleged errors? We could do so, of course, but it would be...