State v. Noble

• Decision Date: 13 May 1924
• Docket Number: (No. 4920.)
• Citation: 123 S.E. 237
• Parties: STATE. v. NOBLE.
• Court: West Virginia Supreme Court

123 S.E. 237

STATE.

v.NOBLE.

(No. 4920.)

Supreme Court of Appeals of West Virginia.

May 13, 1924.

(Syllabus by the Court.)

Error to Circuit Court, Marshall County.

Joe Noble was convicted of the unlawful possession of moonshine liquor, and he brings error. Reversed, verdict set aside, and new trial awarded.

Martin Brown, of Moundsville, for plaintiff in error.

LIVELY, J. Defendant, Joe Noble, prosecutes this writ of error to a judgment of the circuit court entered January 26, 1923, sentencing him to confinement in jail for three months and to the payment of $100 fine, and directing that he perform labor on the county roads until the fine and costs are paid. The indictment charges him with having had in his possession a quantity of moonshine liquor, upon which charge a jury found him guilty.

P. M. Howard, a deputy sheriff, and Private U. L. Crawford of the state constabulary, under authority of a search warrant issued by a justice of the peace, went to defendant's dwelling on Tomlinson avenue in the city of Moundsville to search for intoxicating liquors. Howard went to the back part of the house, and Crawford entered at the front door. Defendant occupied two rooms at the rear of the building, which was two stories in height and of frame construc tion; the front portion being occupied by George Prostinak, the owner of the house. Howard, upon entering the rear into the kitchen, found defendant's wife, Anna, and placed her under arrest, and stepped to the door to call Crawford, when she proceeded to throw a gallon jug into an iron sink, where it was broken and the contents thrown partially over the floor. Howard smelled and tasted the spilled liquor and says it was moonshine liquor. Crawford did not taste the liquor, but smelled it, and testified that it was moonshine liquor. The officers, upon search, found in the cupboard from which defendant's wife had taken the jug a five-gallon jug and a one-gallon jug, the larger of which contained a small quantity of moonshine liquor. There were several bottles and cans in the cupboard which the officers said had contained moonshine liquor. The confiscated jugs were placed in evidence, together with their contents, which Howard said was moonshine. Defendant and his wife testified that the liquor in the broken jug was wine which had been manufactured by defendant from white grapes for the purpose of home consumption. Defendant's father-in-law, Anthony Buksnys, who was present in the kitchen, said the broken jug contained wine or vinegar, and, being called upon by the officer to smell it, he said: "He smells kind of sour." Some of the friends and neighbors of defendant corroborate indirectly his and bis wife's testimony. Defendant was at home that morning just before the officers came, and had been observed by witnesses living near to meet automobiles which drove to within 200 or 300 feet of the house, on Water street, and deliver packages to the occupants, after which the automobiles would drive away. At the particular time the officers came he had gone, according to the evidence, a short distance away to where his mother lived and had obtained a jug and put it in a sack, and was returning to his home when he was met by his wife's little brother, and after a short conversation with him, he ran down toward the river, entered, a green roadster car, and drove away. The officers took the wife before the justice of the peace who issued the warrant, and she gave bond to answer an indictment. At the following term this indictment was found, not against her, but against her husband.

The first point of error is that the search warrant is void because it does not particularly describe the property to be searched that there was no return of the officer thereon; and hence all of the evidence of the officers who executed it was illegal. The search warrant describes the premises to be searched as "that certain two-story frame dwelling house, being the home of said Joe Noble, situate on Thompson avenue in the city of Moundsville, county andstate aforesaid." It appears from some of the witnesses that the house searched was on Tomlinson avenue, but others give the name of the street as Thompson avenue, notably the owner of the house, George Prostinak, who said the number of the house was 1311 Thompson avenue, containing six rooms, four of which at the front of the house he occupied and two at the rear occupied by defendant and his wife. We do not think the description of the premises to be searched is at all indefinite. Whether the name of the street is "Tomlinson" or "Thompson" avenue, a fact which is not at all clear, makes little difference. It was the two-story frame dwelling house occupied by Joe Noble as his home. State v. 'Montgomery, 94 W. Va. ——, 117 S. E. 870. That no return was made on the search warrant showing how it was executed, or that it was executed, does not make it void. It is identified as the warrant upon which the officers made the search and seizure, and their evidence is full as to how it was executed. It is further argued that no probable cause was shown as the basis on which to issue it. The warrant was issued by the justice upon the affidavit of F. M. Howard, who, upon information, swore that on a certain day in the county Joe Noble did manufacture, sell, etc., intoxicants as defined by section 1 of chapter 13 of the Acts of 1913, contrary to the laws of the state, and that he had cause to believe, and did believe, that such liquors were being manufactured, sold, etc. in that certain two-story frame dwelling house, being the home of Joe Noble, etc. The validity of warrants of this character issued by a justice upon complaint upon information was upheld in State v. Kees, 92 W. Va. 277, 114 S. E. 617, 27 A. L. K. 681, and in State v. Montgomery, supra. It would serve no useful purpose to repeat the substance of what is contained in those cases. The search warrant being a valid one, it follows that the testimony relating to its execution, the search, finding of the liquor, and what transpired at the time, and the introduction of the jugs and liquors found in defendant's house, was admissible.

A motion to exclude the evidence of Oliver Schwob and wife, neighbors of defendant, who testified of their observation of defendant's actions on the morning immediately preceding the visit of the officers, because irrelevant and not tending in any way to Incriminate defendant, was overruled. Their evidence was to the effect that they saw him meet automobiles which would drive near to his residence, then return to his house and deliver something to the occupants of the automobiles, who would then drive away. They could not tell what was in the packages delivered. Mrs. Schwob, upon being asked what was in the deliveries, replied that she supposed it was moonshine liquor. Objection was made to this statement, but the record is silent as to what action the court took thereon. There was no motion to strike it out; simply an objection. Of course, it was improper for the witness to testify as to her suppositions. Her husband said he did not know what was in the packages, and expressed no opinion. We think this evidence was relative to the issue. Defendant was charged with having in his possession and selling moonshine liquor, and the jury could make legitimate inferences from his actions detailed on this Sunday morning. Alleged errors of the trial court upon the admission and rejection of evidence are deemed to have been waived if they are not made grounds of a motion for a new trial, nor made subjects of special bills of exceptions showing the evidence and the rulings of the court in its rejection or admission. Guyandotte v. Virginian Electric & Machine Works, 94 W. Va. ——, 118 S. E. 512; Bartlett v. Bank of Mannington, 77 W. Va. 329, 87 S. E. 444; Halstead v. Horton, 38 W. Va. 727, 18 S. E. 953; Gregory's Adm'r v. Railroad Co., 37 W. Va. 606, 16 S. E. 819. The motion for a new trial was based on the ground that the search warrant admitted in evidence was improper and the articles offered in evidence were not admissible, for that cause; that the instructions were wrong; that the verdict was contrary to the law and evidence; and "on the ground of the admission of improper testimony." No specific testimony is pointed out in the motion, the admission of which defendant claimed as erroneous. The court's attention was not specifically directed to any particular evidence or ruling. In fairness to the trial judge his attention should be called specifically to the evidence which was rejected or admitted. That rule is accentuated by the alternate requirement that special bills of exceptions should be taken which always point out specifically the evidence in question. Trials often last several days, and many points are saved to the introduction and rejection of testimony, and it would be unfair to the trial judge to require him on a general assignment of the admission or rejection of testimony, to go over the entire record without the specific instances of error being pointed...