State v. Mccoy

• Decision Date: 19 March 1929
• Docket Number: (No. 6281.)
• Citation: 148 S.E. 127
• Court: West Virginia Supreme Court
• Parties: STATE. v. McCOY.

148 S.E. 127

STATE.

v.McCOY.

(No. 6281.)

Supreme Court of Appeals of West Virginia.

March 19, 1929.

Rehearing Denied May 29, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Upshur County.

M. D. McCoy was convicted for transporting liquor, and he brings error. Affirmed.

E. L. Maxwell, of Elkins, and W. Bruce Talbott, of Phillipi, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MAXWELL, J. Defendant prosecutes this writ of error to a conviction in the circuit court of Upshur county predicated on an indictment which charges that the defendant "did unlawfully bring and carry into the state of West Virginia, and did unlawfully carry from one place to another within said county and state, liquors, as defined by section 1 of chapter 32A of the Code of West Virginia."

The defendant was arrested by the sheriff of Upshur county and a state policeman about 10 o'clock at night in the fall of 1926, on the Upshur county fair ground, while the annual fair was being held. After the arrest a revolver and a bottle of liquid were taken from the person of the defendant. He produced a license from the circuit court of another county permitting him to carry a revolver. There is substantial evidence that the man was in an intoxicated condition at the time of his arrest, though this is denied. The arresting officers say that he was intoxicated, and that that was why they arrested him. The policeman says that prior to the arrest he saw the defendant with his revolver "right at the center of the top of his trousers, extending about halfway out, and he was sort of reeling as he came up through the fair ground with his head down." It is not necessary, however, to discuss this phase of the case at length, because it is of only secondary importance. The question with which we are concerned is as to whether the defendant was transporting intoxicating liquor.

The sheriff testifies that the liquid found on the defendant's person was intoxicating liquor. An analysis was made of a sample ofthe liquid by a chemist in the state prohibition department, and he testifies that he ascertained an alcoholic content of 23.4 per centum by volume. He says: "Synthetically, it was a mixture of water, alcohol and sugar." He further testifies that the sample also contained a slight trace of a bitter plant principal of some kind, but the sample which had been sent him was so small he could not determine the bitter element; that the indications were that the liquid had been derived from nitre, although it did not give the test of nitrates and nitrites as nitre does. Further, that sweet spirits of nitre contains about 95 per centum alcohol and that a method of driving off the nitre to make a beverage is to pour nitre into hot or boiling water. In his opinion the liquid in question was derived from nitre.

Defendant testifies that if he was carrying intoxicating liquor, it was not within his knowledge; that he had been suffering for two or three years from the effects of injury to his back and that he used sweet spirits of nitre for rubbing purposes, and that when he left his home in the afternoon preceding his arrest he was expecting to be away for two or three days, and therefore took with him a bottle of sweet spirits of nitre to use as a liniment; that a few days prior to his arrest the partial contents of two or three bottles of nitre had been poured into one by the defendant's brother, Dr. O. D. McCoy, of Wheeling, who was then visiting at defendant's home in Barbour county. When asked on cross-examination what he had the two or three bottles of nitre at his home for, he said: "I bought it for stock purposes, for medical purposes, to treat my horses, or something like that." He denied that he drank any of this liquid or intended to do so. He says, however, that in the evening prior to his arrest, he took severe cramps and that a friend gave him some "bitters" which the friend said were "absolutely all right, " and that defendant drank a glass of it. On cross-examination he says that the person who gave him the drink was "a perfect stranger to me."

Certain questions of law are presented for consideration. On the assumption that the indictment is founded under section 31a of chapter 32A of the Code, the sufficiency of the indictment is challenged on the ground that it does not negative the exceptions contained in that section. It is true that an indictment based on that section must negative the exceptions therein contained. State v. Harless, 105 W. Va. 480, 143 S. E. 151. But we find that the indictment before us is not based on that section, but is based on section 31 of chapter 32A. Section 31 makes it "unlawful for any person to bring or carry into the state or carry from one place to another within the state, * * * any quantity of intoxicating liquors, whether such liquors are intended for personal use or any other purpose." This section contains no exceptions, and there is therefore no occasion to negative exceptions in an indictment based on that section. Under section 31a, it is "unlawful for any person to order, purchase, sell, or cause intoxicating liquors, to be transported into the state, or from one place to another within the state, in any manner, except pure grain alcohol, for medicinal, pharmaceutical, scientific and mechanical purposes, and wine for sacramental purposes to be used by religious bodies, as now provided by law." The difference between the two sections is thus apparent, also the necessity for negativing exceptions under the latter section while under the former section there are no exceptions to be negatived. We hold the indictment in the instant case to be sufficient.

Exception is also taken by the defendant to the action of the trial court in overruling his motion for a continuance, which motion was predicated on the fact of the absence of defendant's brother, Dr. O. D. McCoy. At the time of the hearing by the court of the defendant's motion for a continuance, he produced both a letter and a telegram from his brother indicating his inability to attend the trial because of press of professional engagements at Wheeling. It seems that the case had been postponed or continued at a prior term of court because of the inability of this same witness to be in attendance on account of illness in his family. Defendant stated in support of his motion: "I want to prove by him where the liquor came from and how I came to have it in my possession, and how it was put in the bottle I had in my possession at the time it was taken off of me. * * * He emptied it out of bottles we had in our medicine chest at home—emptied it out of those different bottles we had there into one." Granting that the Doctor would have testified that a few days before his brother's arrest he had poured the contents of two or three bottles of nitre into the bottle which was found on defendant's person, it by no means follows therefrom that the liquid at the time of the arrest was the same liquid that had come under the Doctor's notice. It does not appear to us wherein the Doctor's testimony could have had material bearing on the issue. Authorities need not be cited for the familiar rule that a motion for continuance is addressed to the sound discretion of the trial court under all the circumstances of the case, and that the appellate court will not reverse a judgment on the ground of the trial court's refusal to grant a continuance unless such refusal plainly appears to have been an abuse of discretion. In the case at bar we are of opinion there was no such abuse of discretion.

On the trial a small bottle of liquid was handed by the prosecuting attorney to the chemist, Borradale, while on the witness stand, and the contents of the bottle were identified by him as sweet spirits of nitre Thereupon, over the objection of the defendant, this liquid was admitted in evidence for the purpose of comparison with the liquid found on the person of the defendant at the time of his arrest. The action of the court in that particular is relied on here as one of the grounds for reversal. If the witness had been incompetent to identify the sample which was handed him, or if he had expressed any doubt about its identity, it would be evident that the sample ought not to have gone to the jury, but in the light of the identification by the expert, we are unable to perceive that the defendant's rights were in any wise prejudiced by permitting the sample to go to the jury in order that comparison might be made by the jury with the liquid that was taken from his person. This was important in ascertaining whether the defendant's contention was well taken that the liquid which he was transporting was sweet spirits of nitre, or whether as a fact it was a beverage that had been made from sweet spirits of nitre, or in some other manner. This procedure is well founded. The law is thus stated in Underhill's Criminal Evidence (3d Ed.) par. 100: "So in case the quality of an article, or its...