State v. Lee Baker.
| Decision Date | 06 February 1923 |
| Docket Number | No. 4674.,4674. |
| Citation | 93 W.Va. 55 |
| Parties | State v. Lee Baker. |
| Court | West Virginia Supreme Court |
1. Criminal Law Accused May Require State to Elect Sale of Liquor Upon Which it Will Stand, Where Evidence Proves Several Sales.
Where under an indictment, consisting of one count, which charges the defendant generally with unlawfully manufacturing, (other than by moonshine still), selling, offering, keeping, storing, exposing for sale, soliciting and receiving, orders for liquors, the state offers evidence tending to provetwo or more sales within the period covered by the indictment, at the close of the state's evidence, the defendant has the right to require the state to elect the sale upon, which it will stand for conviction. (p. 57).
2. Same Evidence Tending to Prove Other Sales of Intoxicat-ing Liquors Incompetent.
Such motion being made, and the state having made its election, on further motion of defendant so to do, all evi- dence tending to prove sales other than the one upon which the state has elected to stand for conviction should be excluded, and a failure to exclude such evidence, upon proper motion, is error. (p. 57).
(McGinnIs. Judge, absent).
Error to Circuit Court, Mercer County.
Lee Baker, was convicted of unlawfully manufacturing (other than by moonshine still), selling, offering, keeping, storing, and exposing for sale, and soliciting and receiving orders for liquors, and he brings error.
Reversed and remanded.
W. H. Malcolm and Ajax T. Smith, for plaintiff in error.
E. T. England, Attorney General, R. A. Blessing, Assistant Attorney General and W. G. Brown, Com'r. of Prohibition, for the State.
Defendant was convicted in the Criminal Court of Mercer County upon an indictment charging him with unlawfully manufacturing, (other than by moonshine still) selling, offering, keeping, storing and exposing for sale and soliciting and receiving orders for liquors; and he obtained a writ of error from this court.
As evidence for prosecution, the state introduced two witnesses, both of whom claimed to have purchased liquor from defendant within one year prior to the indictment. One of them, Roby Epling, testified that he bought liquor from defendant on two occasions, once near defendant's home in the vicinity of Spanishburg, and some time later at a point on the Athens road. On the first occasion he received about a half-gallon of liquor, which was his compensation for hauling defendant to his home in an automobile; and on the second occasion, that is, on the Athens road, he purchased about one gallon, for the price of $16.00. The other witness for the state, Basil Lilly, also testified to having purchased liquor from defendant at two or three different times and places. At the close of the state's evidence, the court, on motion of the defendant, required the state to elect upon which particular sale, it would elect to try defendant. The state responded by electing to rest its case upon the sale to Roby Epling on the Athens road. At this juncture, defendant, by his counsel moved the court "to exclude all of the evidence in this case given by the witness, Basil Lilly, and ask the court to instruct the jury to consider only that part of the evidence of the witness Roby Epling which has been introduced in the case relating to the sale on the Athens road." This motion was overruled and defendant excepted.
With the exception of the testimony of the defendant, himself, in which he denied absolutely ever selling or giving any liquor to Epling, the evidence for the defense consists for the most part of attempts to break down the state's evidence by impugning the character and reputation of the prosecuting witnesses.
The verdict and judgment are assailed by twelve assignments of error. Nine of these involve rulings of the trial court upon the admissibility of testimony and the examination of witnesses. As we see no error in the rulings complained of, we deem it unnecessary to consider them.
The first and second errors assigned, however, present what we think amounts to ground for reversal. The first is an exception to the ruling of the trial court on defendant's motion, heretofore quoted, to exclude all of the state's evidence of sales of liquor, save that relating to the particular sale relied on for conviction, the sale to Epling on the Athens road. The second assignment of error relates to two instructions which were refused, and which if given, would have directed the jury not to consider in any way any evidence of sales of liquor other than the sale on the Athens road. The two assignments of error, therefore, embrace the same propositions.
As we understand the position of counsel for the state, in this court, they do not undertake to controvert the right of the defendant to force an election...
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State v. Allen
...admission thereof constituted prejudical error. They rely on cases like State v. Light, 127 W.Va. 169, 31 S.E.2d 841, and State v. Baker, 93 W.Va. 55, 115 S.E. 860. In State v. Light, the Court held: 'It is the general rule, subject to exceptions, that on trial of a person indicated for a s......
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State Of West Va. v. Light
...with the offense charged is inadmissible. Walker v. The Commonwealth, 1 Leigh 574; Watts v. The State, 5 W. Va. 532; State v. Baker, 93 W. Va. 55, 115 S. E. 860; State v. Coleman, 96 W. Va. 544, 547, 123 S. E. 580; State v. Seckman, 124 W. Va. 740, 742, 22 S. E. 2d 374. There are important ......
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State v. Light
... ... objection prior to the introduction of any evidence by the ... defendant. Evidence of an offense not charged wholly distinct ... and unconnected with the offense charged is inadmissible ... Walker v. Commonwealth, 1 Leigh 574; Watts v. State, ... 5 W.Va. 532; State v. Baker, 93 W.Va. 55, 115 S.E ... 860; State v. Coleman, 96 W.Va. 544, 547, 123 S.E ... 580; State v. Seckman, 124 W.Va. 740, 742, 22 S.E.2d ... 374. There are important exceptions to the general rule above ... stated. For a discussion of those exceptions see State v ... Conway, 94 W.Va. 676, 120 ... ...
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State v. J. F. Hudson.
...the state's evidence, the defendant has the right to require the state to elect the sale upon which it will stand for conviction." State v. Baker, 93 W. Va. 55. See also: State v. Bailey, 75 W. Va. 250, 83 S. E. 910; State v. Davis, 68 W. Va 184, 69 S. E. 644; State v. Calhoun, 67 W. Va. 66......