State v. Rigsby

• Citation: 20 S.E.2d 906
• Decision Date: 12 May 1942
• Docket Number: No. 9304.,9304.
• Court: Supreme Court of West Virginia
• Parties: STATE. v. RIGSBY.

20 S.E.2d 906

STATE.
v.
RIGSBY.

No. 9304.

Supreme Court of Appeals of West Virginia.

May 12, 1942.

Dissenting Opinion June 30, 1942.

[20 S.E.2d 907]Syllabus by the Court.

1. An indictment which charges in apt language the unlawful and felonious transportation of alcoholic liquors in violation of Chapter GO of the Code, and which alleges further, although under the heading "Second Count", that the person indicted has theretofore in this State been indicted and convicted of a former like offense, is not bad on demurrer.

2. A verified complaint by an agent or employee of the Liquor Control Commission which states that he has cause to believe and does believe that alcoholic liquors are being transported, sold, kept, stored and concealed in a described automobile, and that the facts for such belief are, in substance, that the complainant has information that a person, designated by name, known to be a "bootlegger", will deliver whiskey in said automobile at a designated place, is sufficient basis for the issuance of a warrant for search of the automobile.

3. Where peace officers witness an automobile being driven and brought to a stop on a public highway, and observe one of the occupants thereof alight and attempt to remove whiskey from the car and further see the driver, a known "bootlegger", on appearance of the officers, flee and abandon the car, such officers may, without a warrant, arrest the individual who alighted from the car and attempted to remove the whiskey, and thereupon may lawfully search the car for contraband liquor; and the fact that illegal liquor is thereby discovered is proper evidence at the trial against the operator who thus abandoned the car and fled.

KENNA and RILEY, JJ., dissenting.

Error to Circuit Court, Cabell County.

Elbert Allen Rigsby was convicted of unlawful transportation of alcoholic liquors, and he brings error.

Affirmed.

Salisbury, Hackney & Lopinsky and Samuel D. Lopinsky, all of Charleston, for plaintiff in error.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for defendant in error.

ROSE, Judge.

Elbert Allen Rigsby prosecutes this writ of error to the action of the Circuit Court of Cabell County in affirming the judgment of the Court of Common Pleas of that County, by which he was sentenced to the penitentiary for a term of from one to three years upon a second conviction for unlawful transportation of alcoholic liquors in violation of Code, 60-6-12. The errors assigned are: (1) That the demurrer to the indictment was improperly overruled; and (2) that the admission of certain evidence on behalf of the state was improper by reason of its having been procured under a search warrant claimed to be illegal. On the trial, the plaintiff in error undertook to defend by proving an alibi, but the jury's finding against him on that issue is not complained of here.

The indictment consists of four paragraphs. The first two charge adequately the violation of Code, 60-6-12, by the unlawful transportation of alcoholic liquor in Cabell County, but alleged that the act was done "unlawfully and feloniously." The third and fourth paragraphs are set apart under the heading "second count". They charge clearly that the defendant has been before convicted and sentenced in the State of West Virginia for a like offense.

The demurrer was based upon the theory that the first two paragraphs must stand

[20 S.E.2d 908]

alone and that they charge a misdemeanor only, not a felony; and that the last two paragraphs must be treated as a separate and distinct count, which do not allege any punishable crime.

The third and fourth paragraphs are not a "count" in any proper sense of the word, notwithstanding they are so called in the indictment. Their character is not determined by what they are called, but by their actual substance. This so-called "second count" does not in any sense make a charge upon which the defendant can be made to stand trial. It does not pretend so to do. It does not allege that he, in fact, did the act described therein, but only that he was "convicted and sentenced" therefor. These paragraphs further show on their face complete facts which constitute a perfect defense on the grounds of former jeopardy and of autrefois convict. If the indictment contained these paragraphs alone, it would be simply a nullity. But they do serve to show the character of the defendant with whom we are dealing; they place him in a class as to whom the offense charged in the first two paragraphs is a felony. State v. Mullenax, W.Va., 20 S.E.2d 901, decided April 7, 1942; State v. Graham, 68 W.Va. 248, 69 S.E. 1010, 40 L.R.A., N.S., 924. The statute provides that one who has been convicted as charged in the third and fourth paragraphs and subsequently does what is charged against him in the first two paragraphs shall be guilty of a felony. Code, 60-6-12. We, therefore, consider the indictment good.

The search warrant was issued upon complaint, duly verified...