State v. Henson
| Decision Date | 10 October 1922 |
| Docket Number | 4593. |
| Citation | 114 S.E. 273,91 W.Va. 701 |
| Parties | STATE v. HENSON. |
| Court | West Virginia Supreme Court |
Submitted October 3, 1922.
Syllabus by the Court.
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.
A dilatory plea to be sufficient must be certain to a certain intent in every particular.
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 tried in a state court, is bad for failing to allege that the federal authorities have not given their consent to such trial in the state court.
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.
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.
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.
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 section 37 of chapter 108 of the Acts of 1919.
Error to Circuit Court, Greenbrier County.
H. E. Henson was convicted of owning, operating, maintaining, possessing, and having an interest in a moonshine still, and he brings error. Affirmed.
Thomas N. Read, of Hinton, for plaintiff in error.
E. T. England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and W. G. Brown, State Prohibition Com'r, of Summersville, for the State.
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 of 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.Va. 558, 106 S.E. 642. 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, 103 S.E. 110. 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, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, decided by the United States Supreme Court March 27, 1922. 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, 101 S.E. 472. In order to 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...
To continue reading
Request your trial