State v. Merico
| Decision Date | 07 December 1915 |
| Citation | 77 W.Va. 314,87 S.E. 370 |
| Court | West Virginia Supreme Court |
| Parties | STATE . v. MERICO. |
(Syllabus by the Court.)
Error to Circuit Court, Tucker County.
Domineck Merico was convicted of unlawfully carrying a pistol, and brings error. Affirmed.
Chaa D. Smith, of Parsons, for plaintiff in error.
A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.
WILLIAMS, J. Defendant was convicted of carrying a pistol in violation of section 7, c. 148, Code 1913 (sec. 5291), and sentenced to confinement in the county jail for six months and adjudged to pay a fine of $50, and he brings error.
His first assignment is that the court erred in not quashing the indictment He claims it charged him with more than one offense in a single count. Following the language of the statute defining the offense, the indictment charges that he "did unlawfully carry about his person a revolver and other pistol, a dirk, bowie knife, a razor, a slungshot, a billy, a metallic and other false knuckles, without a state license therefor, against the peace and dignity of the state." It is unnecessary to determine whether it charges more than one offense or not, because we have recently held, in State v. Jar-rell, 85 S. E. 525, that an indictment in that form is good.
He next insists that his motion to exclude the state's evidence should have been sustained on the ground that the state omitted to prove he did not have a state license to carry a pistol. While it is necessary for the indictment to allege the want of license, such being an element of the crime (State v. Welch, 69 W. Va. 547, 72 S. E. 649), still the state is not required to prove it. This is an exception to the general rule requiring the state to prove every material allegation of an indictment, and rests on a presumption that the averment is true, unless proven by defendant to be untrue. If defendant had a license, he knew it, and it was easy for him to prove it; whereas, if the rule in such case were otherwise, the state would be required to prove a negative, which is unusual. The same rule of evidence applies in this case as in an indictment for an unlawful sale of intoxicating liquor without a state license therefor. State v. Tygarts Valley Brewing Co., 71 W. Va. 38, 75 S. E. 149; State v. Foster, 23 N. H. 348, 55 Am. Dec. 191; and Woolen & Thornton on Intoxicating Liquors, § 917. There is no ground for distinguishing the two classes of cases.
Defendant does not deny carrying the pistol, but claims he is within the exception of the statute allowing a person to carry an unloaded pistol from the place of purchase to his home or place of residence. At the time he carried the pistol defendant owned a...
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...v. Tygarts Valley Brewing Company, 71 W.Va. 38, 75 S.E. 149. See also State v. Carduff, ---- W.Va. ----, 93 S.E.2d 502; State v. Merico, 77 W.Va. 314, 87 S.E. 370. Instructions Numbers 1 and 5, offered by the defendant, were properly refused. Instruction Number 1 would have told the jury th......
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...proven, it is presumed to have been made without license, and, to justify it, defendant must produce his license.' See also State v. Merico, 77 W.Va. 314, 87 S.E. 370. The defendant complains of the action of the trial court in denying his motion to set aside the verdict and grant him a new......
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