State v. Roberts

• Decision Date: 20 December 1951
• Docket Number: No. 10388,10388
• Citation: 68 S.E.2d 48,136 W.Va. 391
• Court: West Virginia Supreme Court
• Parties: STATE, v. ROBERTS et al.

Page 48

68 S.E.2d 48

136 W.Va. 391

STATE, v. ROBERTS et al.

No. 10388.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1951.

Decided Nov. 20, 1951.

Dissenting Opinion Dec. 20, 1951.

Syllabus by the Court.

1. Where an officer of a municipality has made a lawful arrest for illegal transportation of alcoholic liquor, he may search the vehicle then under the control of the person arrested and being used in the illegal transportation.

2. Where a vehicle used in illegally transporting alcoholic liquor is seized, and a claimant appears in answer to a petition filed by the State praying forfeiture, claiming ownership of the vehicle, the burden is upon the claimant to establish to the satisfaction of the court that he had no knowledge of, and did not consent to or connive in such illegal use.

J. Raymond Gordon, Charleston, for plaintiff in error.

William C. Marland, Atty. Gen., Thaddeus D. Kauffelt, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

This proceeding involves the right of the State to have a certain Ford automobile forfeited under the provisions of Sections 20 and 21, Article VI, Chapter 14 of the Acts of the Legislature, 1937, Code, 60-6-20, 21, as amended, relating to forfeiture of vehicles used in illegally transporting intoxicating liquors. Ruby McFarland appeared in answer to the petition filed by the State, alleged ownership of the automobile, denied any knowledge of the illegal use thereof, and denied any consent to or connivance in any illegal use by Joseph O. Roberts, the driver of the automobile at the time of its seizure. After having heard the evidence offered by the State and the claimant, the Intermediate Court of Kanawha County found and held that the automobile was subject to forfeiture and, by order of December 30, 1950, forfeited the same to the State. The Circuit Court of Kanawha County refused a writ of error to that judgment, on March 9, 1951.

On October 2, 1950, the automobile mentioned was seized by a police officer of the City of Charleston. The officer, upon approaching a state liquor store located on West Washington Street, in the City of Charleston, recognized the automobile which was later seized parked nearby, and immediately thereafter observed Roberts, the driver of the automobile, make several trips from the liquor store to the automobile, on each occasion carrying a package and placing it in the automobile. Roberts was assisted in carrying the packages by Sherman McFarland, husband of claimant. The officer immediately approached the automobile and requested Roberts to exhibit his driver's license. Roberts had then placed himself under the steering wheel of the automobile, proparatory to driving it from its parked location. He immediately placed the car in gear and moved forward. The officer retained hold of the automobile and, after about a block and a half, succeeded in having it stopped. Roberts had no driver's license. The officer immediately placed him under arrest. Upon a search of the automobile the officer found therein intoxicating liquors in a quantity in excess of one gallon, and seized the car. The officer, at the time, was in plain clothes, but testified that he informed Roberts, before requesting his driver's license, that he was an officer. Roberts testified that he did not hear any such statement of the officer, but admitted that when the officer told him to 'back up, he wanted to search the car', he 'pulled away'. Evidence obtained through the search of the automobile was introduced at the hearing. Other facts will appear in the discussion of the questions involved.

The pertinent part of Section 20, mentioned above, reads: 'A conveyance of any kind, either on land, water, or in the air, used for transportation of alcoholic liquors in violation of section twelve of this article, shall be deemed contraband and shall be forfeited to the State and proceeded against in the manner provided for confiscation by section twenty-one of this article.' The pertinent part of Section 12, mentioned in Section 20, reads: 'A person who, without authorization under this chapter, transports alcoholic liquors in quantities in excess of one gallon or in any amount for the purpose of sale or in any amount manufactured or acquired contrary to the provisions of this chapter, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred nor more than five hundred dollars, or confined in jail not to exceed one year, or both such fine and imprisonment for the first offense. Upon conviction of a second or subsequent offense, he shall be guilty of a felony and confined in the penitentiary of this State for a period of not less than one nor more than three years.'

The pertinent parts of Section 21, mentioned above, read: '* * * (1) When such articles, conveyances or vehicles have been seized under or without a warrant provided for in section eighteen of this article, by an officer charged with the enforcement of this chapter, the officer shall take possession of such article, conveyance or vehicle and deliver the same and the alcoholic liquors so seized to the sheriff of the county in which such seizure was made, taking his receipt therefor in duplicate. * * * (8) If the court or judge thereof if it be admitted that said conveyance or vehicle at the time of the seizure, contained illegally acquired liquor or that alcoholic liquors were being illegally transported therein, nevertheless:

'(a) If it shall appear to the satisfaction of the court that such claimant is the bona fide owner and was such owner at the time of such seizure and that he was ignorant of such illegal use thereof and the illegal use was without his connivance or consent, expressed or implied, the court shall relieve said conveyance or vehicle from forfeiture and restore it to such claimant, and no cost shall be taxe[s] against such claimant, * * *. (9) If, however, no valid lien or claim is established against the seized property upon the trial of the petition, or, if it shall be determined that the owner thereof was himself using the same at the time of the seizure or that such illegal use was with his knowledge or consent, express or implied, the said property shall be completely forfeited to the state and turned over to the commission in accordance with the provisions of this chapter. * * *'.

Claimant contends that the seizure and search of the automobile were illegal, having been made without a search warrant, and that the trial court erred when it considered the evidence obtained through the search. The position of the State is that the officer was justified in making the arrest of the defendant and, having made the arrest, was warranted in making the search of the automobile. The State would justify the arrest upon the ground that a crime was committed by Roberts in the presence of the officer. It may be noted, however, that the material facts testified to by the officer were known to him before the search of the automobile.

It is not disputed that a crime was committed by Roberts. He admits having liquor in the automobile in excess of one gallon, and he was convicted of illegally transporting the liquor, and served a sentence imposed for the violation. But does the evidence establish that the crime was committed in the presence of the officer? The officer testified that he drove his own automobile to a point opposite the front of the state liquor store; that he observed 'Roberts carrying a bag of liquor to the car'; that a little later he observed Sherman McFarland, husband of claimant, enter 'the liquor store with Roberts, and carried a bag of liquor back to the car from the liquor store'; and that 'Later, I saw him (Roberts) enter the (liquor) store on three different occasions * * *. He came out with three packages which I seen through the glass window'. The officer was then asked the following question, which he answered:

'Q. When you saw these three packages brought out of the store you did not know what was in them at all, did you? A. Yes, sir, I did.

'Q. Did you know there was whiskey in that package? A. Yes, sir.

'Q. Was it open? A. The bag was open and I seen the whiskey placed in the bag.'

Later, on cross-examination, he testified that he knew five bags were placed in the automobile seized and that four of the bags contained whiskey. None of this evidence is seriously disputed. It is confirmed in part by Roberts, who testified on behalf of claimant. As indicated above, the transportation of the packages removed from the liquor store to the automobile seized was in the presence of the officer.

In view of the evidence, the trial court could have made but one finding, that the violation of illegally transporting intoxicating liquor in excess of the gallon was in the presence of the officer. In State v. Mullins, W.Va., 62 S.E.2d 562, 563, the court held: 'Appearing in a public place in an intoxicated condition constitutes a misdemeanor, for which, if committed in his presence, a duly appointed and qualified police officer of a municipality of this State, acting as such, may arrest an offender without a warrant.' In State v. Koil, 103 W.Va. 19, 136 S.E. 510, Point 2, syllabus, the court held: 'A crime is committed 'in the presence of an officer,' when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe or reasonable grounds to suspect that such is the case. A case in which the evidence is insufficient to show the commission of an offense by the defendant in the presence of an officer.' In State v. Lutz, 85 W.Va. 330, 101 S.E. 434, Point 9, syllabus, the court held: 'An offense can be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of a series of facts constituting the offense, and is aided by his other senses or by information as...