State v. Pridemore
Decision Date | 27 March 1923 |
Docket Number | 4597. |
Citation | 116 S.E. 756,93 W.Va. 417 |
Parties | STATE v. PRIDEMORE. |
Court | West Virginia Supreme Court |
submitted March 20, 1923.
Syllabus by the Court.
Where defendant is charged with unlawfully having "moonshine liquor" in his possession, if the liquor, or evidence of defendant's possession thereof, has been secured by the forcible search of his home, without search warrant or other legal process, neither the liquor so obtained nor the evidence of the possession thereof so acquired is admissible against him in a prosecution for the alleged offense.
Error to Circuit Court, Mingo County.
Dave Pridemore was convicted of unlawfully having in his possession one-half gallon of moonshine liquor, and he brings error. Reversed and remanded.
Thomas West, of Williamson, for plaintiff in error.
E. T England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and W G. Brown, Prohibition Com'r, of Summersville, for the State.
Defendant was tried and convicted by a jury in the circuit court of Mingo County on the 24th day of January, 1922, under an indictment found at the July, 1921, term of that court charging him with unlawfully having in his possession one-half gallon of "moonshine liquor." The judgment of the court, entered on the verdict of the jury, February 9 1922, imposes on the defendant a term of confinement in the county jail, at hard labor on the county road, for 30 days, and payment of a fine of $100 and costs. To that judgment the defendant prosecutes this writ of error.
The defendant was tried in his absence without having pleaded to the indictment, or any plea being entered for him. His counsel, however, appeared and cross-examined the state's witnesses, and defendant was present when the court pronounced sentence. The overruling of the demurrer to the indictment, trial of the defendant in his absence, and refusal of the court to strike out the evidence of the state and direct a verdict of not guilty, are assigned as errors.
The indictment is defective for failing to allege the venue of the crime, but the record fails to show that a demurrer thereto was interposed. No evidence was offered for the defendant, and the only evidence presented by the state was the testimony of J. C. Ward and Robert A. Brown, members of the public safety department, to the effect that on the night of July 2, 1921, about 11 or 11:30 o'clock, they, without search warrant or other legal process, and with no other purpose than to discover intoxicating liquors, went...
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