State v. Knosky

• Decision Date: 25 January 1921
• Docket Number: (No. 4159.)
• Citation: 106 S.E. 642
• Court: West Virginia Supreme Court
• Parties: STATE. v. KNOSKY.

106 S.E. 642

STATE.

v.KNOSKY.

(No. 4159.)

Supreme Court of Appeals of West Virginia.

Jan. 25, 1921.

(Syllabus by the Court.)

Lynch, J., dissenting.

Appeal from Circuit Court, Hancock County.

Frank Knosky was convicted of having in his possession and operating a moonshine still, and he appeals. Reversed and remanded.

J. B. Levy, of Weirton, and E. A. Hart, of New Cumberland, for plaintiff in error.

E. T. England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and Jno. T. Simms, of Charleston, for the State.

RITZ, P. The defendant was indicted, tried, and convicted under the provisions of section 37 of chapter 108 of the Acts of 1919, for having in his possession and operating a moonshine still, and was sentenced to confinement in the penitentiary for a term of two years, and to pay a fine of $300.

It appears from the evidence that the sheriff of Hancock county had information that the defendant was engaged in the unlawful manufacture of intoxicating liquors, and with a view of investigating the complaints he, with one or more of his deputies, went to the residence of the defendant. It appears that the defendant resided with his family, consisting of himself, his wife, and four children, in a small house on a farm containing about 140 acres, the house being, according to the witnesses, from 300 to 500 feet from the public road which passes the place. The defendant rented this house and farm from the owner, who reserved a room in the same for his own use, which was at the time being occupied by him. When the shertiff approached the house from the road, he saw two men leaving the same from the opposite side, and when he and his deputies reached the house and entered the kitchen of the same they discovered therein a still, such as is used for the manufacture of spirituous liquors, sitting on the stove in the defendant's kitchen in full operation. They also found a keg of manufactured liquor in an adjoining room and a gallon. jug of the same liquor about two-thirds full, as well as a large amount of raisin mash ready to be used in the process of manufacture. The sheriff testified that he made an inspection of the liquor being produced at the time by the still, and found that it is what is popularly called "raisin jack, " or "pick handle, " or "white mule, " and that it was intoxicating. Upon the trial of the case the defendant introduced no evidence to contradict the testimony of the sheriff, which was fully corroborated by one of his deputies who accompanied him.

Upon this writ of error the defendant insists that the judgment against him should be reversed, and relies upon three grounds therefor: First, that the adoption of the Eighteenth Amendment to the Constitution of the United States, and the passage of the federal prohibition law for the enforcement of the same, superseded all state laws having for their purpose the enforcement of prohibition; second, that the punishment provided for the offense inhibited by section 37 of the act above cited is cruel and unusual, and in violation of the Constitution of this state; and, third, that under the evidence the defendant was not guilty of operating a moonshine still within the meaning of said sec- Hon 37, but that, if he was guilty of anything, he was guilty under section 3 of the act.

The defendant's first contention is without merit. The Eighteenth Amendment to the federal Constitution in terms provides:

"The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."

It cannot be denied but that the purpose of of the Eighteenth Amendment was to secure practical prohibition, and it is quite as plain from the language above quoted that the intention was to confer, not only upon the Congress, but upon the several states, the power, not only to enforce, but to enact such legislation as might tend in that direction. The adoption of this amendment was at least to some extent an innovation on what had been theretofore considered to be within the exclusive jurisdiction of the several states, and no doubt the Congress, in submitting this amendment, believed that the enforcement of the prohibition provided by the amendment could be better secured, in some instances at least, by the action of state authorities. It will be noticed that the language used does not limit the states to the enforcement of such laws as may be passed by Congress for the effectuation of the purpose of the constitutional amendment, but confers upon the states power to enforce the amendment by appropriate legislation. This plainly gives to the several states power to adopt such means by way of legislation as will best meet the obstacles existing in each locality to the enforcement of the law. The fact that some states may make an offense not included within the general prohibition law enacted by Congress can make no difference so long as the general purpose is kept in view. There is some discussion of this concurrent power conferred upon the Congress and the several states in the case of Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946, and related cases, decided by the United States Supreme Court, and reported in the Advance Opinions of July 1, 1920.

Nor is there merit in the contention made that the punishment prescribed by section 37 of chapter 108 of the Acts of 1919 is out of proportion to the character and degree of the offense, or is cruel or unusual, and for that reason in violation of the Constitution of this state. The power of the Legislature...