State v. Moran
| Decision Date | 24 May 1927 |
| Docket Number | 5926. |
| Citation | 138 S.E. 366,103 W.Va. 753 |
| Parties | STATE v. MORAN. |
| Court | West Virginia Supreme Court |
Submitted May 11, 1927.
Syllabus by the Court.
Where the officers enter and search the defendant's premises under a search warrant issued pursuant to the provisions of section 9 of chapter 32-A, Barnes' Code 1923, and on the afternoon of the second day thereafter again enter and make further search of the premises, under and with the same warrant, on which no return was made following the search made on the first day, the only reason assigned for the abandonment of the first search being that it was dark and they could not look everywhere they wanted to, but no reason is given for the delay in returning, the further or second search is "unreasonable" within the meaning of section 6 of article 3 of the Constitution of this State, and the evidence obtained thereby is inadmissible on the trial of the defendant for the offense charged in the warrant.
Error to Circuit Court, Marshall County.
Glen Moran was convicted of the possession of moonshine liquor and he brings error. Judgment reversed, verdict set aside and a new trial awarded.
J Howard Holt, of Moundsville, for plaintiff in error.
Howard B. Lee, Atty. Gen., and J. Luther Wolfe, Asst. Atty. Gen., for the State.
The defendant was tried and convicted on an indictment charging him with unlawfully and feloniously having in his possession a quantity of moonshine liquor. The statute, section 37 of chapter 32-A of the Code, makes the first offense a misdemeanor, and section 3 of said chapter provides that for a second offense under the act, the accused shall be guilty of a felony, and that "if it be a second offense, it shall be so stated in the indictment returned, and the prosecuting attorney shall introduce the record evidence before the trial court of the conviction of said first offense," etc. The indictment set forth the fact of the former conviction; and the prosecuting attorney had the clerk of the circuit court read into the evidence before the court and jury, the complete record of the former trial and conviction. At the conclusion of the clerk's testimony, counsel for defendant inquired of him:
Counsel then moved to strike out the evidence of this witness, and excepted to the action of the court in overruling his motion.
By a bill of exceptions signed by the trial judge, it appears that defendant's counsel objected to the introduction of the record of the former conviction, on the ground that, in May, 1924, this same defendant had been tried and acquitted on an indictment setting forth the same first conviction. But there is no evidence in the record of the trial and acquittal in May, 1924. The only intimation of a trial at that time is the recital in the bill of exceptions. The record does not show that the defendant was indicted for any offense in the year 1924, or at any time after the conviction in September, 1923. Therefore, we cannot consider the question raised by the bill of exceptions referred to.
The defendant objected to the introduction of the evidence obtained by a search of his house boat moored in the Ohio river near the West Virginia shore. C. K. McCluskey, chief of police of the town of Glendale, on the 29th day of August, swore out a warrant for the search of the house boat and the arrest of the defendant. Armed with this warrant, he and a member of the department of public safety made a search of the boat the same day, but found no evidence of intoxicating liquor, and did not arrest the defendant. Between 2 and 3 o'clock in the afternoon of the 31st of the same month, McCluskey and a deputy sheriff, again entered defendant's boat with the same search warrant and made further search. Finding intoxicating liquor, they arrested the defendant, took with them the liquor, and made a return of the warrant as of that date. No return was made following the first search.
The only reason for making the second search is found in McCluskey's testimony, as follows:
"Q. And you went there on the 29th day of August, I believe, first did you not? A. Yes, sir.
Q. And you made a search of Mr. Moran's house boat at that time? A. Yes, sir.
Q. And you went back on the 31st to make further search? A. Yes, sir.
Q. And you did not find anything on the first search? A. No, sir.
Q. You had once made search under this search warrant? A. Yes, sir.
Q. This is the only search warrant that you had, Mr. McCluskey? A. For that particular place.
Q. You made both searches under that warrant? A. Yes, sir.
Q. You made a complete search on the 29th of August? A. Not a complete search, it was dark and we couldn't look everywhere we wanted to.
Q. But you went over the boat? A. That night.
Q. And went away? A. Yes, sir.
Q. You did not make any return on this warrant of what you did on the 29th of August? A. No, sir.
Q. And then you went back with the same warrant on the 31st? A. Yes, sir."
The form of the warrant involved follows the statute, section 9 of chapter 32-A of the Code, and has been held to be valid. The purpose of this statute was to aid in the apprehension of violators of the prohibition laws and in securing evidence against them. It gives to any justice of the peace jurisdiction, upon information made under oath or examination, to issue his warrant requiring the person suspected to be brought before him for examination, and the house, building or other place, where the information alleges the contrabrand liquors are kept, to be searched. The officers in this case had lawful authority to enter the premises of the defendant and search his house boat, in which he and his family lived, for evidence of the possession of intoxicating liquors. The question here presented is whether the manner of the execution of the warrant was a violation of the Fourth Amendment of the Constitution of the United States and section 6 of article 3 of the Constitution of this State, providing against unreasonable searches and seizures.
No reason is given for the abandonment of the first search except that "it was dark and we couldn't look everywhere we wanted to." No reason whatever was given for delaying the search until the afternoon of the second day thereafter, a period of probably 40 hours or more. And it does not appear what time in the day or night the officers entered the boat on the 29th, or how long they were there. McCluskey said they made a search of the boat; went over it, and went away. Neither of the officers testified that when they left after the first search they had any intention of returning. And it appears from McCluskey's testimony that defendant's house boat had been there for three or four weeks, and that he had been watching it "about three nights out of the...
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State v. Matthews
... ... constitution. Unless the statute so provides an officer ... charged with the execution of a lawful warrant therefor is ... not obliged to exhibit the warrant as a prerequisite to his ... right to execute the writ." At the same time, in the ... case of State v. Moran, 103 W.Va. 753, 757, 138 S.E ... 366, 367, this court has quoted with approval the following ... language from Cooley's Constitutional Limitations: ... "But as search warrants are a species of process ... exceedingly arbitrary in character, and which ought not to be ... resorted to except for ... ...