State v. Patachas
| Decision Date | 08 April 1924 |
| Docket Number | 4949. |
| Parties | STATE v. PATACHAS. |
| Court | West Virginia Supreme Court |
Submitted April 1, 1924.
Syllabus by the Court.
A person who makes, has in his possession, or on his premises or on the premises of another, or has under his control, or an interest in, any mixture of fermenting substances or materials, such as corn meal, or other crushed or ground cereals, fruits or roots combined with water or other liquids or substances, commonly known as "mash," or any mixture of like kind or character for the purpose of making intoxicating liquors, is guilty of a misdemeanor, and punishable as provided in section 37, c 32a, Code 1923, without reference to the method or manner in which the liquors may be made from such mixture, whether by fermentation or distillation.
If it be shown that the purpose of the possession of such mixture was to make intoxicating liquor therefrom, it is not necessary to show that the liquor was to be made by use of a moonshine still, in order to sustain a verdict of guilty as charged.
Where the language of a statute is free from ambiguity, and the intent is plain, there is no occasion for interpretation by a court. "It is not allowable to interpret what has no need of interpretation."
Error to Circuit Court, Tucker County.
Stanley Patachas was convicted before a Justice of the Peace for violating the prohibition laws, and brings error. Affirmed.
Charles D. Smith, of Parsons, for plaintiff in error.
E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
On appeal from a judgment of a justice of the peace defendant was found guilty by a jury for an infraction of the prohibition laws, and sentenced to pay $100 fine, and to be imprisoned for 90 days at hard labor.
Three members of the state police, armed with a search warrant, found 10 gallons of "mash" in a vessel behind the stove in defendant's kitchen. The mash, composed of cracked corn, peaches, lemons, prunes, and water, was in a high state of fermentation. Defendant was arrested, tried, and convicted on a warrant charging him with having in his possession a quantity of "mash," contrary to the laws of this state. Witnesses testified that the mash when fully fermented would produce an intoxicating liquor; also that defendant's son and John Barkoski, who were in the kitchen, and defendant, who was in bed, were under the influence of intoxicants. No moonshine still or any parts of a still were found. Witnesses did not know if the mash was for the purpose of making liquor by distillation or fermentation. A sample was preserved and exhibited to the jury. Defendant did not go upon the witness stand, and offered no evidence.
Defendant moved the court to strike out all of the evidence and direct a verdict in his favor, which motion was refused. The court instructed the jury that there are "two ways of making intoxicating liquors, one by distillation, and the other by fermentation," and defendant objected and excepted, and assigns this as a point of error. Defendant offered and was refused an instruction telling the jury "that all evidence of the intoxicating nature of the mixture exhibited as 'mash,' 'pickhandle,' or 'old hen' is stricken from the evidence, and you are not to consider the intoxicating nature thereof in arriving at your verdict"; and the refusal of this instruction is another point of error.
Other instructions were given which are not complained of. One, whether offered by by the state or defendant, the record does not say, told the jury in substance that, if they believed defendant made, had in his possession, or on his premises, or had under his control, or an interest in, any mixture of fermenting substances or materials such as corn meal or other crushed or ground cereals, fruits, or roots, combined with water or other liquids or substances, or any mixture of like kind or character, before they could convict defendant, they must believe from the evidence beyond a reasonable doubt that he had the mixture as above set out commonly known as "mash," or a mixture of like kind and character, for the purpose of making intoxicating liquors, and, if they did not so believe, then they should find defendant not guilty.
The whole contention of defendant is that the possession of the mixture by him did not constitute an offense, unless it was shown that he had it for the purpose of making moonshine liquor by use of a moonshine still; and this the evidence failed to prove. On this theory he says the instruction that told the jury that intoxicating liquor could be made by fermentation as well as by distillation was prejudicial; likewise the refusal to give his instruction striking from the evidence that part relating to the intoxicating nature of the mixture or "mash," was prejudicial. Although the statute in terms says the possession of any mixture of fermenting substances or materials for the...
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