State v. Moss, 6548.

• Decision Date: 18 March 1930
• Docket Number: No. 6548.,6548.
• Court: West Virginia Supreme Court
• Parties: STATE. v. MOSS.

152 S.E. 749

STATE.

v.MOSS.

No. 6548.

Supreme Court of Appeals of West Virginia.

March 18, 1930.

Rehearing Denied April 21, 1930.

Syllabus by the Court.

Error to Circuit Court, Monongalia County.

Victor Moss was convicted of having in possession moonshine liquor as a second offense, and he brings error.

Affirmed.

Donald G. Lazzelle, of Morgantown, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

LIVELY, P.

Convicted of having in possession moonshine liquor, as a second offense, and sentenced to one year in the penitentiary, Moss prosecutes this writ.

He says that: (1) The evidence does not warrant the verdict; (2) the indictment is bad; (3) the search warrant on which evidence was predicated was defective and void, hence all the evidence procured thereunder should have been withheld from the jury; and (4) state's instructions were erroneous.

On February 18, 1929, the sheriff, his deputy, the chief of police of the city of Morgantown, a member of the state police, and perhaps other officers, raided a small house at No. 1101 University avenue in the city; the deputy sheriff having in his possession a search warrant for that particular building, in which it was commanded that liquors, etc., therein found should be seized, and that all persons found in the premises be apprehended.

They entered the first room where tobacco, cigarettes, candy, etc., were retailed, and attempted entrance through a door to the adjoining room. The door was heavily barred and bolted from the opposite side, and had three observation holes of about one inch in diameter covered from the inside. They demanded entrance; the door was not then opened; they kicked in one of the lower panels; the door was then unbolted and opened. They found defendant therein, with two other men and two women, one of the latter apparently intoxicated. They found bottles, drinking glasses, corks, and the like; the bottles containing a few drops of moonshine liquor. An odor of liquor and filth pervaded the room. Concealed under the floor in a false chimney, just under the stove, they found a keg containing several gallons of moonshine liquor. The top of the keg was just under the floor, and a. hole was bored through the floor over the keg near a leg of the stove, and a cork placed in the hole in such a way that discovery was difficult. The contraband liquor, bottles, glasses, and the like were confiscated and placed in evidence; the men were put under arrest, but Moss slipped away, and was apprehended, or voluntarily surrendered, a day or so later. Sales from a wholesale grocery company were made to Moss & Majetic in that month at that house and charged to them. Moss was frequently seen there waiting on customers, and closing and locking the door at night. The building was owned by Luigi Lapera and the rent was paid him by one Frank Ramola. Defendant offered no evidence. The jury was warranted in finding that defendant was in possession of a quantity of moonshine liquor, on the 18th of February, 1929. The first assignment is not tenable.

It is asserted that the indictment does not properly charge a second offense, and therefore the evidence of the first conviction should have been excluded. This alleged deficiency is based on the fact that the indictment does not allege that the first offense charged therein was against the state; and it is argued that said offense may have been against a municipal ordinance. The indictment charges that on October 25, 1925, at the October term of the circuit court of that county, said Victor Moss was duly tried under and by name of V. Moss upon appeal case No. 1491 for unlawfully having in his possession a quantity of moonshine liquor, and "upon a plea of nolo contendere by said Victor Moss, said Victor Moss was duly convicted of unlawfully having had in his possession a quantity of moonshine liquor, and upon said conviction said Circuit Court of Monongalia County, West Virginia, on the 16th day of April, 1926, at the April, 1926 Term of said Circuit Court, sentenced said Victor Moss to be confined in the jail" for a stated time and be fined $100. The description of the first offense need not be technically perfect. State v. Hoilman, 82 W. Va. 98, 95 S. E. 591. The purpose of aver ring the first conviction is to advise defendant with sufficient directness and particularity of the offense he is required to meet and to enable the court to determine whether the statute applies. State v. Savage, 86 W. Va. 655, 104 S. E. 153; 16 C. J., p. 1342, § 3159. Here, defendant was told the time, the court, the offense, the conviction, and the sentence which he was required to meet. The appeal on which he was tried is numbered. Whether that appeal was from a trial had before a justice of the peace, or a mayor, or a person acting as such, is of little consequence, for it is the duty of municipal officers to enforce the prohibition statute in the municipality independently of any ordinance, or want of ordinance. Section 29, chapter 32A, Code. The gist of the charge is that defendant was convicted and sentenced for a violation of the prohibition statute, namely, for having possession of a quantity of moonshine liquor, and he is sufficiently advised by the indictment of what offense he has to meet. The record of that conviction, introduced to prove the charge of first conviction, shows that the appeal case originated before Posten, a justice of the peace, on information and warrant regularly filed and issued. Moreover, the style of that case in the circuit court was State of West Virginia v. Moss. We conclude that the indictment is sufficient as charging a first and second offense of having in possession, moonshine liquor. But in this connection, it is argued that the indictment is bad as charging a first conviction, because it shows on its face that the first conviction was based on a plea of nolo contendere entered by defendant; and, it is argued, this plea does not admit the truth of the facts charged in the indictment for purposes other than those in the case in which it is made, and it is such a plea as cannot be used against the defendant in any subsequent criminal proceeding under a statute providing an additional penalty for a second or recurring offense. That argument would be availing if the indictment had not set out the conviction and sentence under that plea. The conviction makes the offense, and it is immaterial whether the plea was guilty, not guilty, or nolo contendere. A plea of guilty would not sustain an indictment for a second offense unless it was averred that judgment and sentence had been pronounced; for the court might not have accepted that plea, and required proof. There must be finality. A verdict of guilty would not be sufficient, for that verdict may be set aside, or the court, on motion, may hold it for consideration. Prisoner's counsel relies on State v. La Rose, 71 N. H. 435, 52 A. 943, 945, for the above proposition that a plea of this character prevents a conviction under a statute providing an additional penalty for a recurring offense. In that case the indictment charged a prior conviction, but there was no evidence introduced of a judgment of conviction, if one was had; the only evidence in that regard being that de- Cendant had pleaded nolo contendere to the former charge of keeping spirits for sale. There was no finality. In State v. Fagan, 64 N. H. 431, 14 A. 727, the same court held that in a prosecution for a second offense, the defendant's conviction of a previous offense is equally conclusive whether his plea in the previous case was guilty, not guilty, or nolo contendere. It is the conviction which controls, not the plea interposed. It is here argued that the La Rose Case overrules the Pagan Case, at least, by implication. We do not so interpret it. The cases were dissimilar. Both were cases in which convictions were asked for a second offense, and in the first case in point of time (Fagan Case) the defendant on the indictment for the first offense pleaded nolo contendere, and judgment and sentence were imposed. In the later La...