State v. Jess Beall.

• Decision Date: 10 February 1925
• Docket Number: (No. 5130.)
• Citation: 98 W.Va. 189
• Parties: State v. Jess Beall.
• Court: West Virginia Supreme Court

98 W.Va. 189

State

v.Jess Beall.

(No. 5130.)

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1925.

Decided February 10, 1925.

1. Intoxicating Liquors Proof Arousing Suspicion That Ac-

cused Procured Liquor to be Placed in Secreted Spot to be Afterwards Removed by Him is Not Sufficient to Sustain Conviction of Possession Thereof.

Proof of facts and circumstances which arouse suspicion that defendant had procured some one to place moonshine liquor in a secreted spot to be afterwards removed by defendant, is not sufficient to sustain a conviction under an indictment charging him with having in his possession such moonshine liquor. (p. 194).

2. Criminal Law Circumstantial Evidence as Basis for Conclu-

sion of Guilt Should Exclude, Beyond all Reasonable Doubt, Every Hypothesis But One on Which Conviction is Based.

Where a conclusion of guilt is based upon circumstantial evidence, it is essential that the evidence should beyond all reasonable doubt actually exclude every hypothesis but the one on which the conviction is based. (p. 193).

Error to Circuit Court, Lewis County.

Jess Beall was convicted of possession of moonshine liquor, and he brings error.

Judgment reversed; verdict set aside; new trial awarded. L. H. Barnett, for plaintiff in error.

E. T. England, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Lively, President:

Upon an indictment charging him with having in his possession a quantity of moonshine liquor defendant was convicted and sentenced to serve two months in jail and to pay a fine of $200.00. This writ of error is to that judgment and sentence.

There is little controversy of fact, The sheriff and his deputies who were witnesses at the trial had information and knowledge that a jug of moonshine liquor was buried in a field nearby a covered bridge near Polk Creek in Lewis County. In order to detect the offender they had been watching this cache of liquor by night, lying in the bushes some distance therefrom. On Tuesday night in the fore part thereof on May 19, 1923, the sheriff, O. P. White, and his deputy, Roscoe White, while guarding the buried liquor as above indicated, observed an automobile drive near the covered bridge, on the other side of the creek, stop, and after the lights were turned off, three persons alight therefrom and come through the bridge into the field. These persons were Roy Beall, Carl Hacker and Jess Beall, the defendant. Roy Beall was observed to part from his two companions, and go out of view, and after being gone some time, returned carrying a small jug in his hand. It appears that before he reached his two companions, defendant and Hacker, they came down through the field to where the officers were hiding and within a short distance of them and appeared to be looking at them. The officers, realizing that they had been discovered, stepped forward and arrested defendant and Hacker. Roy Beall was not arrested, it appearing that he had left the field and his whereabouts was then unknown. Jess Beall and Hacker were then conveyed to jail. Upon reaching the car parked near the bridge the officers found therein a number of bottles and corks, a funnel, one or two traveling bags, and a mattock. They returned the following day for the purpose of placing Roy Beall under arrest, and in making further investigation they found a gallon jug of moonshine liquor secreted under the sidewalk near the road, and they also possibly found a shovel in the near vicinity. In addition they found another five-gallon jug of liquor secreted in the ground in the bushes where they had been lying. On the night before, they had been lying in wait on almost the very spot where this last mentioned five-gallon jug was afterwards found. Jess Beall had no liquor in his physical possession or about his person when arrested; nor did he have any bottles or receptacles for the same. It appears that defendant, who was a nephew of Roy Beall, lived quite a distance from the town near which his uncle resided, and on the preceding Saturday had come to his uncle's house on a visit and for the purpose of obtaining employment in the town as a teamster. He afterwards did obtain employment and at the time of the trial was operating his team in the town as a teamster. It further appears that being in the town that night with his uncle and Hacker, they entered the car, Jess Beall stating in his evidence that he was going to his uncle's house to stay all night, They proceeded to Polk Creek where the incidents above recorded transpired. Defendant testified that he made no prior arrangements concerning...