State v. Miller.

• Decision Date: 27 June 1885
• Court: West Virginia Supreme Court
• Parties: State v. Miller.

26 W.Va. 106

State

v.Miller.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1885.

Decided June 27, 1885.

While it is the usual practice, where a jury is waived, and the case submitted to the court in lieu of a jury, if the party, against whom the judgment is rendered, is dissatisfied therewith, to except to the judgment and have the court certify the facts proved, yet it is not necessary for the record to show, that the judgment was excepted to, It is sufficient, if the facts appear upon the record either by the certificate of the court or otherwise, (p. 109.)

2. In such a case upon review in the appellate court the case will be

regarded as on demurrer to evidence, and the plaintiff in error the demurrant, (p. 109.)

3. A case reversed because the facts proved are plainly insufficient to

warrant the judgment; thedefendant having been indicted for selling spirituous liquors, &c, and the proof showing that he was a purchaser not a seller. (p. 110.)

4. Upon review of a case tried by the court in lieu of a jury, if the

evidence was plainly insufficient to warrant the judgment, the appellate court will reverse the judgment and render judgment for defendant. (p. 110.)

The facts of the case appear in the opinion of the Court:

Kenna Se Chilton for plaintiff in error.

Alfred Caldwell, Attorney General, for the State.

Johnson, President:

The defendant, Miller, was indicted in the circuit court of Logan county for selling spirituous liquors, &c. without license.

On the 5th day of July, 1883, the case was heard before the court in lieu of a jury, and the court on the issue joined on the plea of not guilty found the defendant guilty and assessed a fine of $10.00 against him. The record states: "Thereupon the defendant by his attorney moved the court to set aside the verdict and grant him a new trial, because the same is contrary to the law and the evidence and is insufficient to warrant said finding," which motion the court overruled, to which ruling of the court the defendant excepts, and tenders his bill of exceptions, &c. Then follows the bill of exceptions, which certifies the evidence. The whole evidence for the State is as follows: "The State to maintain the issue on her part introduced one F. M. Aldridge, as a witness and proved the following facts: That witness, Dr. Waldron, E. Gibson, and defendant were together in a room at Logan C. II., Logan county; that Dr. Waldron wanted some whisky and asked witness Aldridge to go and get some for him; that witness asked Miller if he knew where whisky could be got, and defendant told witness that he thought he could get some from one J. B. Buskirk; that witness went out of the room and was gone some time, and then returned and said he could get none; that defendant then at the request of Dr. Waldron, took the bottle and money (fifty cents) and went away and after a little while returned with a pint of whisky and gave it to Dr. Waldron, which the party drank; that this occurred within the county of Logan, and within one year previous to the finding of the indictment"; and here the State rested the case.

Why the defendant thought it necessary to introduce any evidence is hard to understand, but he did. He was himself sworn and stated how and where he got the wdiisky. He said he took the bottle and money and went to the shed of Buskirk's barn, saw a colored man there; laid the bottle and money down on the head of a barrel under the shed, and went away, and in a short time went back, and found the bottle filled with whisky lying on the head of the barrel and the money gone; he took the whisky to Dr. Waldron, and the party drank it; that he did not know, who filled the bottle; that he was told by George Steele that he could get whisky by leaving his money and bottle there; had no arrangement or understanding with any one about selling said whisky; was interested in no way in selling said whisky; got the same for Dr. Waldron. at his request; that he had several times, after said Steele had given him the information, got wdiisky at the same place in the same way.

J. B. Buskirk was sworn as a witness for defendant and said, that at no time did defendant ever have any understanding or arrangement with witness to aid or assist him in selling whisky.

The bill of exceptions states: "And these being all the facts proved by both the State and the defendant, the court found the defendant guilty and assessed his fine at $10.00; and thereupon the defendant moved the court to set aside the said verdict as being contrary to the law and the evidence, which motion the court overruled and proceeded to render judgment on...