State v. Johnson

• Decision Date: 29 November 1927
• Docket Number: (No. 5702.)
• Citation: 140 S.E. 532
• Parties: STATE. v. JOHNSON.
• Court: West Virginia Supreme Court

140 S.E. 532

STATE.

v.JOHNSON.

(No. 5702.)

Supreme Court of Appeals of West Virginia.

Nov. 29, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Barbour County.

Willis Johnson was convicted of owning, operating, and having an interest in a moonshine still, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.

J. Blackburn Ware and Paul B. Ware, both of Philippi, for plaintiff in error.

Howard B. Lee, Atty. Gen., and J. Luther Wolfe, Asst. Atty. Gen., for the State.

HATCHER, P. [1, 2] Joe Newman, Jonah Parsons, William Norris, and the defendant, Willis Johnson, were jointly indicted for owning, operating, and having an interest in a moonshine still. The first two admitted their guilt. The defendant pleaded not guilty, but was found guilty by the jury. He contends that the evidence does not support the verdict.

The evidence of the state proper to consider on the question of his guilt is as follows: Some officers came upon Newman, Parsons and defendant in the woods, at a still in operation; defendant was seated about 8 feet from the still doing nothing; Newman and Parsons were closer to the still; an officer drew a pistol and commanded the three to put up their hands; Newman and Parsons submitted to arrest, but defendant ran, and when arrested a few hours later denied having been at the still.

The defendant admitted at the trial that he was at the still when the officers came, but denied having any interest in or connection with the still. He explained that he had been on a ridge above the still gathering chestnuts when Newman and Parsons, who were his friends, called to him to come down; that he went to the still in response to their call, was merely talking to them when the officers arrived, and ran when the officer drew his pistol because he was afraid there would be shooting. Newman and Parsons supported the defendant's testimony in every particular. They admitted ownership of the still and testified that defendant had no interest in it and had not operated or assisted in its operation. A number of witnesses testified to defendant's previous good character.

As no witness for the state saw defendant do anything, or heard him say anything indicating ownership, operation or possession of the still, the state's case rests entirely on his presence at the still and his alleged denial that he was there. The fact that he ran when the officer drew his pistol is of little evidential weight against him when we consider that Newman and Parsons, admittedly guilty, did not run under the same circumstance. The denial, while not politic or creditable to him, may be attributed to fear and his desire to escape detention. It does not necessarily indicate guilt. Mere presence at a still, unexplained, may be sufficient to convict; but...