State v. Montgomery
| Citation | 117 S.E. 870,94 W.Va. 153 |
| Decision Date | 29 May 1923 |
| Docket Number | 4661. |
| Parties | STATE v. MONTGOMERY. |
| Court | Supreme Court of West Virginia |
Submitted May 22, 1923.
Syllabus by the Court.
A justice of the peace has jurisdiction to try one accused of having in his possession "moonshine liquor," and to impose the penalties therefor provided by section 37, c. 32A Barnes' Code 1923.
Generally where a statute is amended and re-enacted, the amendment should be construed as if it had been included in the original act; but it cannot be retroactive unless plainly made so by the terms of the amendment.
A search warrant directed "to any member of the department of public safety or to any constable of said county" is not void because directed to an unauthorized officer. Members of the department of public safety are authorized and directed to receive and execute search warrants issued by any properly constituted authority.
If the complaint on which a search warrant has been issued shows that the complainant has information that the offense is being committed, and that he has cause to believe and does believe that the offense is being committed, and makes oath thereto, it will constitute sufficient "probable cause," and the warrant issued thereon is not void for that reason.
Where a justice of the peace has jurisdiction of a cause of action it will be presumed that the proceedings therein were regular until the contrary is shown.
A search warrant which directs the officer to enter that building, outbuildings and premises occupied by M. M. M. as a barber shop in the village of E., in the county and state aforesaid, and there search and seize all intoxicating liquors and other appurtenances therein found apparently used in the sale, keeping, or storing of liquors contrary to law and commanding the officer to arrest all parties and persons found in the premises where such liquors are found, is a sufficient specific description of the place to be searched, the thing to be seized, and the person or persons to be apprehended.
If in the execution of such warrant the barber shop in the building be searched in the presence of the owner, and it be ascertained through him that he occupies a sleeping room in the building to be searched, which he rents from another, and where he sleeps, and he makes no objection to a search of that room, but, on the contrary, conducts the officer to it, and unlocks it and his trunk therein, where moonshine liquor is found, which is seized, the search and seizure is not unlawful and unreasonable, though the other portions of the building be owned or occupied as a dwelling by another person.
It is unnecessary as a part of the procedure for the accused before trial to file his petition and pray for the return to him of articles seized under an alleged void search warrant, and to ask that the officers be prohibited from giving evidence obtained in the unlawful search and seizure, in order to exclude the articles and testimony as evidence on the trial. The rights of the accused in that regard are amply protected and conserved by motion to reject or exclude when the articles and testimony are offered on the trial.
Error to Circuit Court, Randolph County.
M. M. Montgomery was convicted of unlawfully having in his possession a quantity of moonshine liquor, and he brings error. Affirmed.
C. W. Maxwell and W. B. & E. L. Maxwell, all of Elkins, for plaintiff in error.
E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
On March 4, 1922, the circuit court, upon a verdict of guilty as charged in the warrant, sentenced defendant to confinement in jail for 90 days, and to pay a fine of $300, to which judgment and sentence this writ was awarded.
The warrant charged defendant with unlawfully having in his possession a quantity of moonshine liquor, in January, 1922, contrary to law. The evidence on which defendant was convicted was obtained by virtue of a search and seizure warrant issued prior to the warrant on which he was convicted, and the case turns upon the legality of the issuance and execution of the search warrant. Upon the affidavit of R. S. Irons made before M. M. Smith, a justice of the peace, on January 28, 1922, a search and seizure warrant was issued and placed in the hands of Elwin Moran, a member of the department of public safety, commonly known as the directing him to forthwith enter that building and premises occupied by defendant as a barber shop in the village of Ellamore, in Randolph county, and search, and seize all liquors, etc., found therein, and to arrest all parties and persons found in said premises, and bring them before him to be further dealt with according to law. This officer, accompanied by Moore and Wooddell, members of the state police, proceeded to the building designated in the search warrant, which contained the barber shop in one room at the end of the building, and searched the shop, but found no intoxicating liquors therein. Defendant was found, and was present while the shop was being searched. Some of the officers asked him where he roomed, and he informed them that his room was in the building, and, upon the expression of a desire by the officers to search his room, he took them to it, opened the door, and a search was made therein. In his trunk, which defendant opened with his key, the officers found 11 pints of moonshine whisky, a sample of which was introduced in evidence. The dwelling was occupied by Columbus Moore, who rented the room in which the liquor was found to defendant, which he occupied, and where he slept. The liquor, together with defendant, was taken before the justice where the warrant was issued on the 29th of January, the prisoner placed in custody, and the trial of the case was continued until February 1st, when defendant appeared in person and by counsel, craved oyer of the complaint for the search warrant and the warrant which was granted, filed a plea to the jurisdiction of the justice to try the case, the state having elected to try under the statute, and also tendered and filed another plea, stating, in substance, that there was no evidence against him except that secured by the officers on the search warrant which was alleged to be illegal and unlawful, and that the search was made in violation of the constitutional right of defendant to be secure from unreasonable search and seizure.
The plea averred that the search warrant was void: (1) Because it was not directed to the sheriff or a constable; (2) because it was directed to any member of the department of public safety, and was executed by a member of that department; (3) because the warrant was sworn out upon information under oath contrary to the Constitution; (4) that the complaint did not show that Irons, who made it, had probable cause upon which to base it; (5) because Irons was not actually sworn to the complaint; (6) that Irons had no personal knowledge of any offense committed by defendant, and therefore no probable cause existed for the search warrant; (7) because the warrant was a subterfuge in order to obtain evidence; (8-11) because of indefinite description of the place to be searched and the persons or things to be seized; and (12) because of other errors and irregularities appearing upon the face of the complaint and search warrant.
The plea was rejected, the case tried, and a fine imposed upon the prisoner of $300, and he was sentenced to be confined in jail for 90 days, and to labor upon the public roads. An appeal was taken to the circuit court, and tried on March 4th, with the result above indicated. On February 24th defendant presented to the court his petition setting out the proceedings hereinbefore detailed, and setting up the same grounds in varied form for his discharge which he had interposed by his plea in the trial before the justice, and alleging upon information and belief that Irons, who signed the complaint for the search warrant, was not sworn to the truth of the matters therein contained, and prayed therein that Irons, the prosecuting attorney, and the officers who arrested him be made parties to the petition, and that the liquor wrongfully taken from him be returned, that the search of petitioner's premises and the seizure of his property be declared unlawful and wrongful, and that the officers be prohibited from testifying against the petitioner upon the appeal. The petition was demurred to by Irons and the officers, and the demurrer sustained. Petitioner tendered an amendment setting out in effect that the officers not only searched the barber shop, but entered the home and apartments of Columbus Moore in the same building, and searched his (defendant's) private room in the home of Moore, and charging that under the search warrant they had no right to search his private room in Moore's home, and for that reason the search of the room and seizure of the liquor was illegal and void. A demurrer was sustained to this amendment. Defendant pleaded not guilty, and the case went to trial. At the conclusion of the evidence of each of the officers (they being the only witnesses examined) defendant moved to strike out the evidence of each because the search warrant was void. The court refused to sustain these motions. The complaint for the search and seizure and the warrant for search and seizure, with the return thereon, were introduced in evidence; also a sample of the moonshine liquor seized. No evidence was offered by defendant.
Logically the first assignment of error which should be considered is whether the justice had jurisdiction to try on the warrant; for, if the justice did not have jurisdiction, and could not try the case, the circuit court had no jurisdiction upon appeal. Richmond v. Henderson, 48 W.Va....
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