State v. Huff
| Decision Date | 08 May 1917 |
| Citation | 92 S.E. 681,80 W.Va. 468 |
| Parties | STATE v. HUFF. |
| Court | West Virginia Supreme Court |
Submitted March 27, 1917.
Syllabus by the Court.
A bill of particulars and a continuance will be denied, in prosecution for the unlawful sale of intoxicating liquors where the only ground assigned in the motions therefor is that the indictment, valid and in the usual form, does not specify the name of the person to whom the alleged sale was made.
That the term of one of the commissioners who participated in the preparation of the list from which were drawn and summoned the jurors for the term of court at which accused was convicted had expired prior to the preparation of such list and he had not been reappointed nor any other person appointed in his stead, is not ground for challenge to the array. Such commissioner, acting colore officii, is an officer de facto, and his acts as such are valid and binding in the absence of a showing of actual prejudice to the rights of the defendant.
Remarks or conduct by a prosecuting attorney before the jury during the progress of a criminal trial will not constitute reversible error, especially where the jury are instructed to disregard the statements and conduct, unless it is manifest the rights of defendant were injuriously affected.
The statute (Code, c. 116, § 3 [sec. 4642]) requiring jury commissioners to prepare and to the clerk deliver for record in his office a list of the jurors selected by them is directory, and a reasonable delay in the performance of that duty is not such a material irregularity as will warrant a motion to quash a panel drawn from the list.
Loss of the stenographic notes duly taken of the evidence adduced upon a trial is not ground for the award of a new trial by the appellate court, where the bills of exception prepared by the movant and properly signed and filed on the writ of error purport to contain all the evidence introduced before the jury and the proceedings had in the trial court, and there is no showing that such bills are incomplete.
This court will not reverse a judgment of conviction merely because the trial court refused to permit a detective, engaged to procure evidence in a criminal proceeding, to state as a witness, on cross-examination, what monthly salary he received from the agency which employed him.
Error to Intermediate Court, Kanawha County.
Claude Huff was convicted of an unlawful sale of intoxicating liquors, and he brings error. Affirmed.
T. S Clark and Cato & Bledsoe, all of Charleston, for plaintiff in error.
A. A Lilly, Atty. Gen., and John B. Morrison, J. E. Brown, and Chas. Ritchie, Asst. Attys. Gen., for the State.
LYNCH, P.
The defendant was convicted in the intermediate court of Kanawha county, fined and sentenced to imprisonment in the county jail, under an indictment charging a violation of section 1, c. 32, Code 1906 (Code 1913, c. 32, § 1 [sec. 1113]). Of that judgment he now complains.
He demurred to the indictment and moved to quash it, but does not point out any defect in it, and we perceive none. It charges that on October 8, 1910, without a state license therefor, the defendant in Kanawha county sold, offered and exposed for sale, and solicited and received orders for spirituous liquors, wine, porter, ale, beer, and drinks of a like nature. In this manner he was formally advised of the accusation preferred, sufficiently to require him to answer the offense alleged.
The omission in the indictment of the name of the person to whom the liquors were sold is made the basis of a motion, refused, to require the prosecuting attorney to designate the name of the vendee. The refusal to comply with this demand is warranted by the decisions of this court in State v. Chisnell, 36 W.Va. 659, 15 S.E. 412, and State v. Calhoun, 67 W.Va. 666, 69 S.E. 1098.
Equally without merit was defendant's motion to continue until a future term a trial of the case, the sole reason alleged for the postponement being the supposed lack of definiteness , in that the description as to the time, place, and circumstances of the violation and the name of the purchaser. Chapter 32 (secs. §§ 1113-1279) of the Code requires persons charged with the unlawful sales of intoxicating liquors shall be tried at the term at which the indictment is found. Its policy is to speed the determination of such cases, to the end that violations of its provisions may promptly be suppressed; and a continuance will not be granted except for good cause, the burden of showing which devolves upon the accused. Clearly, the defendant failed to satisfy this requirement. The basis of his motion was that, as the indictment did not furnish a detailed statement of the circumstances incident to the violation charged against him, or the name of the yendee, he could not safely enter upon the trial without the opportunity afforded by a continuance to ascertain when, where, and to whom he may have sold liquors in violation of law. This we think, as did the trial court, was not a sufficient reason for granting the delay sought by the defendant. The indictment furnished all the data necessary to enable him to prepare his defense. Such facts he knew, because the evidence shows that his place of business or residence recently had been searched and intoxicating liquors found upon the premises, under his control if not owned by him, and doubtless he knew that the indictment was founded upon the information in this manner obtained, and also that sales of liquors were there made on or about the date of the search. It is scarcely to be supposed that he was not cognizant of the search and seizure of the intoxicants so found. Besides, the ruling upon the motion, requiring as it does the exercise of judicial discretion, will not be reviewed, unless it is apparent the accused was prejudiced by the denial of the motion. State v. Harrison, 36 W.Va. 729, 15 S.E. 982, 18 L. R. A. 224; State v. Madison, 49 W.Va. 96, 38 S.E. 492; State v. Angelina, 73 W.Va. 146, 80 S.E. 141, 51 L. R. A. (N. S.) 877.
Another assignment attacks the authority and qualification of one of the jury commissioners acting for and on behalf of the court in the preparation of the list from which were drawn and summoned the jurors for the trial of cases at the session of the court at which defendant was convicted. It is contended: First, that, as the term of G. G. Reynolds, who in 1910 participated as one of such commissioners in the preparation of the list, theretofore had expired, his participation therein avoided the selection and disqualified the persons so drawn and attending at the term; and, second, that they were disqualified likewise because the commissioners failed to keep and to the clerk deliver a record of their proceedings, to be recorded and preserved by him in his office, as required by section 3, c. 116, Code (sec. 4642). It is agreed in a stipulation between opposing counsel that the term of Reynolds did expire June 1, 1900; that he had not been reappointed, and no other person appointed in his stead; that the list from which the trial jurors were drawn for service was prepared by Reynolds and G. W. Connell; and that a record of their proceedings then was not made, but in December thereafter was made and entered of record by what purports to be a nunc pro tunc order signed by both commissioners, on which appear the names of the 50 jurors selected by them to attend as such upon the intermediate court when and as drawn and summoned for that purpose.
A jury list is not invalid, and does not constitute a ground of challenge to the array drawn from it conformably with the statute, merely because a commissioner whose term of office had expired and whose successor had not been appointed participated in its preparation. The exercise of the duties of the office after the expiration of his term does not invalidate his official acts. No authority cited or found sanctions the challenge here relied on. The common-law process of choosing grand and petit jurors has in many states, including our own, been superseded by statutes; the object to be promoted by the change being to secure jurors less subject to criticism than were those sometimes convened under the former methods. The wisdom of this legislation is obvious. It minimizes the possibility and danger of that favoritism exhibited not infrequently when the authority to choose these essential court attendants was conferred exclusively upon a single officer, generally the sheriff of the county. Its object was to secure impartial men, and to apportion among many the service which formerly was confined to a few persons; these often being the social or political associates or friends of the officer to whom was committed the right of selection. For such enactments there was an imperative public demand; and so salutary has their operation been that the courts...
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