State v. John
| Decision Date | 08 February 1927 |
| Docket Number | (No. 5741.) |
| Citation | 136 S.E. 842 |
| Parties | STATE. v. JOHN. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Monongalia County.
James Madison John was convicted of owning and operating a moonshine still, and he brings error. Affirmed.
Chas. T. Herd, and Donley & Hatfield, all of Morgantown, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
HATCHER, P. The defendant was convicted in the circuit court of Monongalia county upon a charge of owning and operating a moonshine still.
The prosecution had its inception in a search and seizure warrant, issued on March 6. 1926. It was executed on March 21, 1926, the sheriff's return showing:
"I executed the within warrant by searching the premises of the within named Madison John, and finding thereon 411 gallons of moonshine liquor, two 50-gallon stills, 40 pounds of charcoal, and about 400 pounds of sugar, and 9 barrels of apple juice, 1 dozen packages of magic yeast, hose, cooling system to operate a moonshine still."
The defendant offered no evidence at the trial, and the case against him was fully established.
The judgment of the lower court is attacked here because of its several rulings on (a) the indictment; (b) a motion for a continuance; (c) the search warrant and the evidence procured thereby; and (d) instructions.
The Indictment.
Two criticisms are leveled at the indictment: (1) It bears record that it was found upon the evidence of "J. E. Rodeheaver et al." The statute prescribes that the names of the witnesses before the grand jury shall be written at the foot of the indictment. The defendant says that "et al." is not a compliance with the statute, and the indictment herein should therefore have been quashed. This question was settled many years ago in the case of State v. Enoch, 26 W. Va. 253, which held that the requirement of the statute in this particular is directory, and that a failure to comply therewith is not fatal to an indictment. That ruling was affirmed in State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. Rep. 875, and reaffirmed in State v. Joseph, 100 W. Va. 213, 130 S. E. 451. (2) The second count of the indictment charges the defendant with aiding and abetting in the operation of a moonshine still, but does not give the name of the party so aided. The defendant says that the name of the principal should have been included in this count. A discussion of the sufficiency of the second count is not necessary, because the verdict of the jury referred specifically to the first count only. The first count was unobjectionable. Under State v. Hoke, 76 W. Va. 36, 84 S. E. 1054, it is immaterial, when a conviction is had on a good count, whether a demurrer to other counts should have been sustained. It is clear that an accused cannot be prejudiced by a count upon which he is not found guilty, even though it be defective.
Continuance.
In support of a motion for continuance, the defendant filed an affidavit alleging that subpoenas for two of his witnesses, Bunt Ashby and Charles Harford, had not been executed. The affidavit admitted that both witnesses were nonresidents of West Virginia. It stated that Ashby occupied the premises of the accused for about 8 months a "little over a year ago, " and that since then Ashby had been a weekly visitor on the premises, remaining there on many occasions for several nights at a time, and that affiant expected Ashby to testify that, during the many times Ashby was on the premises, no intoxicating liquor had been manufactured. The testimony expected of Ashby would have been of little moment, as the stills could have been operated during the periods Ashby was not there. The affidavit stated that affiant expected to prove by Harford that the stills discovered by the search belonged to Harford, and had been hidden on affiant's premises more than 2 years before the trial, without his knowledge and consent, and during his absence from home. It is entirely improbable that Harford, a nonresident of the state, would voluntarily respond to the summons of defendant, and place himself within the toils of the law, by proclaiming owner-ship of the stills. Besides, the evidence shows that at least one of the copper boilers found on the premises had been bought personally by the defendant within 6 months prior to the search, and that it was blackened and soiled from recent use. Had the expected testimony of Ashby and Harford materialized, it would have availed the defendant nothing.
The Search Warrant.
1. The search warrant does not show affirmatively that it was issued by the justice while in his district. In condemning the warrant for this reason, defendant cites State v. Hines, 100 W. Va. 505, 130 S. E. 669. In that case it appeared that the justice was outside of his district at the time he issued the warrant. In this case it does not so appear. In the absence of evidence to the contrary, it will be presumed that the proceedings of the justice were regular in this respect. State v. Montgomery, 94 W. Va. 153, 117 S. E. S70.
2. The description of the premises searched is alleged to be insufficient, on the ground that neither the complaint nor the warrant describes the property as being in Monongalia county, W. Va., and that both com plaint and warrant refer to the property as the "Johns property, " while the evidence shows that a number of farms in the immediate vicinity of the premises searched were known as "Johns farms." It is true that the complaint, while describing the property as in Cass district, ' does not say that Cass district is in Monongalia county, but the warrant itself does locate Cass district as "in the county aforesaid"; that county being Monongalia. While there are several Johns farms in the vicinity of the searched premises, the complaint and warrant particularized the one occupied by Madison John, and there was only one occupied by him. The officers testified that they had no difficulty in locating the property, because they knew that in which he lived. The prevailing rule is that the place to be searched is sufficiently described if the officer to whom the warrant is directed is enabled to locate it with certainty. 24 R. C. E. 712; State v. Montgomery, supra, 162 (117 S. E. 870).
3. The evidence shows that the warrant could have been executed within a few hours. It was held 15 days before the search was made. The defendant contends that this delay rendered the warrant invalid, and that all evidence secured by reason of the search was inadmissible. State v. Pachesa (W. Va.) 135 S. E. 908, is cited, which holds that a search and seizure warrant must be executed within a reasonable time after it is issued, otherwise it becomes invalid, and its execution is in violation of section 6, art. 3, Constitution of West Virginia. There an unexplained delay of 50 days was held to be unreasonable and to invalidate the warrant. That case makes no attempt to formulate any definite rule as to what constitutes unreasonable delay. It states that what is reasonable time must depend on the facts and circumstances of each case. In refusing to hold that a delay...
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