State v. Massie

Decision Date11 December 1923
Docket Number4854.
Citation120 S.E. 514,95 W.Va. 233
CourtWest Virginia Supreme Court

Submitted October 16, 1923.

Syllabus by the Court.

A search warrant issued pursuant to the provisions of section 9 of chapter 13, Acts 1913, section 9 of chapter 32A Barnes' Code 1923, cannot be extended to authorize the arrest or search of a person not in any way connected with the place directed to be searched, who merely happens to be upon the premises, and who is not mentioned or described in the warrant or affidavit of probable cause upon which the warrant was issued.

Evidence obtained by the discovery of a pistol or revolver upon one unlawfully arrested or searched cannot be used in evidence against such person upon his trial for carrying such weapon in violation of the statute.

Every reasonable construction must be resorted to in order to save a statute from unconstitutionality.

Error to Circuit Court, Wyoming County.

Boyd Massie was convicted of carrying a pistol or revolver without having a state license, and he brings error. Reversed and remanded, for new trial.

E. W Worrell, of Pineville, for plaintiff in error.

E. T England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen for the State.


Defendant was tried and found guilty under an indictment charging him with unlawfully carrying about his person a pistol or revolver, without having a state license therefor, in violation of section 7, chapter 51, of the Acts of 1909.

The only testimony offered by the state was that of the officer, a member of the State police, who made the arrest. He says that he was making a search of a pool room under a "warrant for the pool room and everybody that was in it;" that the search warrant called for liquor only, and that no names were mentioned therein; that he had never seen defendant before; that defendant was playing pool, and when searched, the pistol was found upon his person; and that he then arrested him and took him to Mullens, and later appeared before the grand jury and gave the information leading to his indictment.

Defendant, the only witness in his behalf, testified that he had stepped into the pool room for a bottle of coca cola, and had not been there two minutes when the officer came in and announced that he had a search warrant for the house and everybody in it, and proceeded to search every one in the room. He says that he had no interest in the pool room, and was only there for a bottle of coca cola, and that he was not playing pool, but was standing against the counter.

Upon the introduction of the officer's testimony the defendant moved to strike out all the evidence of the witness, which motion was overruled by the court. The warrant is not exhibited in the record, and the evidence does not show that it was produced on the trial. There is no evidence of its contents, except the testimony of the officer that it was for "liquor," and for the "pool room and everybody in it," and that no names were mentioned therein. There is no evidence to show by whose authority it was issued, or upon what information.

If we may assume that the warrant was issued under section 9 of chapter 32A, Barnes' Code 1923, section 9, chapter 13, Acts 1913, of which there is no evidence, that section is as follows:

"Every justice of the peace and every circuit, criminal or intermediate court, or the judges thereof in vacation, and every mayor of any city, town or village, upon information made under oath or examination that any person is manufacturing, selling, offering, or exposing, keeping or storing for sale or barter, contrary to law, any liquors, or that the affiant has cause to believe and does believe that such liquors so manufactured, sold, offered, kept or stored for sale or barter in any house, building or other place named therein, contrary to the provisions in this act, shall issue his [search] warrant requiring the person suspected to be brought before him for examination, or the said house, building or other place to be searched, and the parties found therein to be arrested and brought before him as aforesaid; and requiring the officer to whom it is directed to summon such witnesses as shall be therein named, or whose names are endorsed thereon to appear and give evidence on the examination, and in the same warrant shall require the officer to whom it is directed to seize and hold all liquors found therein, also vessels, bar fixtures, screens, glasses, bottles, jugs and other appurtenances apparently used in the sale, keeping or storing of such liquors contrary to law."

The question presented to us is whether a warrant issued under this section authorized the officer to search or arrest an innocent bystander or patron of the place designated to be searched. Was such search and arrest in violation of section 6 of article 3 of the State Constitution, which is:

"The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized?"

It must be remembered that defendant had no interest in the pool room; and that he was not named in the warrant. Assuming that the warrant was properly issued, and authorized the officer to search the premises described, did it authorize the search or arrest of one not named therein, who had no interest in or connection with the place or the business conducted there? We do not think the Legislature intended by the words, "and the parties found therein to be arrested," to authorize the arrest of one not connected with the place to be searched or the article for which the search was made, or perhaps the arrest of anyone when no evidence of the offense charged in the warrant is found. And in this case there is no evidence that the officer found that the offense charged in the information had been or was being committed. So far as the record shows the only evidence he found of any offense was by a search of defendant, and that offense was not mentioned in the warrant and was in no way connected with the offense charged in the information. The constitutional provision above quoted says that the warrant shall particularly describe the person or thing to be seized. The thing to be seized is described in the warrant here, but no person is named. To so construe the statute under consideration and the warrant...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT