State v. Henry Kees.

• Decision Date: 14 November 1922
• Citation: 92 W.Va. 277
• Parties: State v. Henry Kees.
• Court: West Virginia Supreme Court

92 W.Va. 277

State

v.Henry Kees.

Supreme Court of Appeals of West Virginia.

Submitted October 31, 1922.

Decided November 14, 1922.

1.Searches and Seizures Constitutional Provision Against Unreasonable Searches and Seizures Declaratory of the Common Law.

The provisions of the Constitution that the rights of the citizens to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and that no warrant shall issue except upon probable cause, supported by oath or affirmation particularly decribing the place to be searched, or the person or thing to be seized, was adopted for the purpose of guaranteeing to the citizens the rights and immunities then enjoyed under the common law.(p. 279).

2.Same Legislature Can Declare What Shall Constitute Provable Cause.

Under such constitutional provision it is competent for the legislature to declare that a certain showing shall constitute probable cause for the issuance of a search warrant, provided the complaint thus prescribed does not require less to be shown than was required for the issuance of such a warrant at common law.(p. 279).

3.Criminal Law Search Warrant Issued on Statutory Complaint Admissible in Trial of One Whose Premises Searched.

A search warrant issued upon a complaint in the form prescribed by § 9 of ch. 32a of the Code is a valid warrant, and evidence procured by a search made thereunder is proper to be introduced upon the trial of one whose premises were searched for an offense thereby shown, (p. 279).

4.Intoxicating Liquors Fact That Search Warrant Issued on Information Conveyed to Complainant Held Not to Invalidate it.

The fact that the complainant in the information upon which a search warrant is issued, shows that the reason for his belief that an offense is being committed upon certain premises is information conveyed to him, instead of facts known to him personally, will not invalidate the same.(p. 279).

5.Criminal Law Verdict on Conflicting Evidence Not Set Aside on Appeal Unless Against Weight of Evidence.

The verdict of a jury based upon a conflict between oral evidence and inferences proper to be drawn from circumstances and facts which appear in the case, will not be set aside by this Court, unless there is such a preponderance against the verdict as to indicate that the jury were influenced by passion, prejudice, or some other improper motive, (p. 283).

Error to Circuit Court, Berkeley County.

Henry Kees was convicted of aiding and abetting in the operation of a moonshine still, and he brings error.

Affirmed.

A. G. Mclntireand John H. Zirkle, for plaintiff in error.E. T. England, Attorney General, and B. Dennis Steed, Assistant Attorney General, for the State.

Ritz, Judge:

Upon an indictment charging him in one count with owning operating and maintaining a moonshine still, and in another with aiding and abetting in the operation of such a still, the defendant was tried and found guilty upon the latter charge by the verdict of the jury, upon which a judgment was entered by the court, to review which he prosecutes this writ of error.

The matters relied upon for reversal of the jujdgmcnt are the action of the court in admitting certain evidence, which it is contended was procured by an unlawful search and seizure, and the insufficiency of the evidence as a whole to sustain the verdict.

Before entering upon the trial of the casethe defendant filed with the circuit court a petition in which he alleged that his premises had been searched by deputy sheriffs under the authority of an alleged search warrant; that said search warrant was void for the reason that it was issued upon a void complaint, and this is the ground of the principal assignment of error in this case.The complaint upon which the warrant was issued follows:

'' State of West Virginia, County of Berkeley, to-wit: Personally appeared before me, the undersigned authority, in and for the said county aforesaid William Dean, sheriff who being by me first duly sworn (upon information) under oath, complains and says, that he has cause to believe, and does believe that intoxicating liquors, as defined, by Sec. 1 of Chapter 13, Acts of the Legislature of 1913, are being manufactured, sold, offered, exposed and stored for sale or barter in said county aforesaid in that certain premises of Henry Kees near Mt. Glenn Orchard contrary to the laws of the State of West Virginia, and he, the said Wm. Dean, sheriff therefore prays that the said premises of Henry Kees near Mt. Glenn Orchard be searched and that all liquors found therein, together with all vessels, bar fixtures, screens, glasses, bottles, jugs and other appurtenances apparently used in the sale, keeping or storing of liquors, contrary to law, be seized and held to be further dealt with according to law.Dated this 26th day of August 1921.William Dean, Sheriff B. C.Taken, subscribed and sworn to before me this 26th day of August, 1921.Fred II.Baker, Justice of Peace B. C."

The objection to the complaint is that it appears upon its face that it was made by the affiant upon information, and not upon facts known to him, and that it was the duty of the justice of the peace to examine the witnesses and determine judicially whether there was cause for the issuance of the warrant, instead of issuing it upon an affidavit that the complaining party had reason to believe, and did believe, that the offense was being committed.The argument is that the issuance of a search warrant by a justice of the peace or other officer is a judicial act, and that the officer issuing it must inquire into the facts and determine for himself that they constitute probable cause before issuing the warrant, whereas, in this case, it appears that the warrant was issued simply upon an affidavit made by the sheriff that from information in his possession he had reasonabde cause to believe, and did believe, that an offense was being committed.In the case of State v. Brown, 91 W. Va. 709, decided at this term of the court, we held that an affidavit made in compliance with the statute of itself would constitute probable cause upon which a justice might issue a search warrant without further inquiry.An attempt is made to distinguish that case from the instant case, and we are also asked to review the holding there made.There is no substantial difference in the complaint in the two cases.The difference between them is more apparent than real.In the Brown casethe complainant simply swore that, he had reason to believe, and did believe, that intoxicating liquors were being sold upon the premises sought to be searched.In the instant casethe complainant swears that from information which he has he believes, and has reason to believe, that intoxicating liquors are being manufactured upon the premises which it is desired to have searched.The only distinction in the two cases is that in the Brown casethe complainant did not give the ground of his belief, while in the instant case the sheriff who makes the affidavit says that his belief is induced by information in his possession, so that it will be seen that there is really no substantial difference in the two complaints, except that in the instant case the complaint is a little fuller, and that it specifies the basis of the affiant's belief.We are, therefore, called upon to determine again whether a complaint made in the form prescribed by the statute constitutes probable cause upon which a justice or other officer may issue a search warrant.The constitutional provision inhibiting the issuance of any search warrant, except upon probable cause shown by information under oath or affirmation, is appealed to by the defendant as requiring the justice or. other officer, to whom application is made for the issuance of the warrant, to institute an inquiry and determine judicially whether or not there is such probable cause.Upon the other hand, it is urged that it is competent for the legislature to prescribe what shall constitute probable cause for the issuance of such warrant, so long as it does not permit the issuance thereof otherwise than upon an information under oath or affirmation.There are many...