State v. Mchenry

• Decision Date: 20 March 1923
• Docket Number: (No. 4713.)
• Citation: 117 S.E. 143
• Court: West Virginia Supreme Court
• Parties: STATE v. McHENRY.

117 S.E. 143

STATE

v.McHENRY.

(No. 4713.)

Supreme Court of Appeals of West Virginia.

March 20, 1923.

(Syllabus by the Court.)

Error to Circuit Court, Fayette County.

J. W. McHenry was convicted of unlawfully having in his possession mash for the purpose of making intoxicating liquors, and he brings error. Reversed and remanded.

Dillon & Nuckolls, of Fayetteville, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MILLER, P. Defendant was tried and found guilty upon an indictment charging that he "did unlawfully make and have in his possession, and under his control, and did have an interest in a certain mixture of fermenting substances and materials, commonly known as 'mash' for the purpose of making intoxicating liquors, " in violation of section 37, chapter 115, Acts of the Legislature of 1921 (section 37, chapter 32A, Barnes' West Virginia Code 1923).

To the judgment on the verdict that defendant pay a fine of one hundred dollars and be confined in the county jail for a period of two months, he sued out the present writ of error.

As grounds for reversing the judgment counsel for defendant assign the following:

"(1) Because the verdict is contrary to the law and the evidence and should have been set aside. (2) Because the court admitted illegal and improper evidence on the part of the State over the objection of the defendant. (3) Because the court refused to permit defendant to introduce certain evidence offered by him. (4) Because the court gave the jury instructions one and two at the instance of the State over objection. (5) Because the court refused to give at the instance of defendant instructions three, five, six and seven. (6) Because the court over objection of defendant (after all the evidence had been introduced, argument of counsel thereon and instructions to the jury) permitted the jury to return into the court room and there examine, smell and inspect the alleged 'mash' to be considered by them in the determination of the case without an opportunity on the part of defendant to cross examine or rebut in any way the effect of the illegal evidence gathered by the jury by its inspection. (7) Because the court refused to set aside the verdict and grant the defendant a new trial."

We need not consider these points in their order of precedence; they are more or less involved in each other. It is not only fully proven, but admitted, that defendant did have in his possession a mixture composed of cracked corn and molasses skimmings, and he says also of middlings, immersed in water, and that the possession of such mixture, if possessed for the purposes alleged in the indictment, would constitute a violation of the statute. The fact in controversy, affirmed by the indictment, but put in issue by the defendant's plea of not guilty, is whether defendant's possession of said substance was as charged, "for the purpose of making intoxicating liquors."

Much evidence was introduced on the finding and character of the mixture, a fact which was not denied by the defendant. The State undertook by circumstances alone to show possession of the mixture for the unlawful purposes alleged. There was not a particle of evidence showing or tending in any appreciable degree to show that defendant had been making or selling liquor, or had any still or other apparatus in his possession used or capable of being used for that purpose. Before finding the mash in the grain or feed house, the public officers, between nine and twelve o'clock in the nighttime, invaded defendant's house in the country, after defendant and his family had retired for the night, claiming the right to do so upon a search warrant, not produced, and after searching the house and premises found no mash or contraband liquor of any kind, nor any apparatus for making liquor or any evidence that liquor had been made there. The only evidence found was the possession of the mash in the outhouse, which defendant explained was slop or hog feed, which he was feeding to his hogs, and protested against the act of the officers in pouring it out on the ground.

The only other facts and circumstances relied on by the State to show guilt, the evidence of which was objected and excepted to, consisted: First, of the testimony of a young woman of the neighborhood, who in May, six months previous to the raid upon defendant's premises, that she had assisted in nursing defendant's wife in childbirth, and that during that time she had seen defendantmix up with water something like yellow liquor and give it to his wife and children; that later she had seen defendant at her father's house, when in her opinion he had been drinking; that she had never seen liquor before, but from the odor of defendant's breath, she concluded that it smelled of liquor; that on another occasion or two she had seen defendant going along the public road on his horse leaning over as if he were intoxicated, and that apparently he was under the influence of liquor. Second, the evidence of the officers and others, that a few days after the finding of the mash and the arrest of defendant, they had, on searching the territory in the neighborhood of defendant's residence, at a point from three to five hundred yards therefrom, found two holes in the ground side by side, about the size of a barrel and about two and a half feet deep, but not proving that they were on defendant's premises, or that they had ever been used for or were adapted to the making of liquors; that these holes were covered with moss and were full of dried leaves, and across the top of which a tree had fallen. Third, that some twenty-five or thirty yards from these holes were found some coals or evidences of a fire and that wood had been burned there.

The second of the assignments of error relied on covers these three classes of testimony. The question is: Was this evidence, or any of it, admissible for any purpose Does it do more, if it does that, than to arouse a bare suspicion of guilt? Without the evidence of the possession of the mash, no one would think of the connection of these facts with the making of liquor. Proof of facts which at most tend only to aroused suspicion, but which in no way proves the actual commission of the crime alleged, will not sustain a verdict of guilty. Evidence tending in no appreciable degree to establish the fact of the crime should be admitted with caution, if at all, for by admitting it the court impliedly says to the jury that it does in some degree bear on the fact in controversy. State v. White, 66 W. Va. 45, 66 S. E. 20; State v. Chafin, 78 W. Va. 140, 88 S. E. 657; State v. Donahue, 79 W. Va. 260, 90 S. E. 834.

Of course there, is a distinction between the sufficiency of such circumstances to convict and their admissibility as facts in a chain of circumstances tending to show guilt. Objection on the ground of...