State v. Rogers
| Decision Date | 18 September 1917 |
| Docket Number | (No. 2626.) |
| Citation | 93 S.E. 757 |
| Court | West Virginia Supreme Court |
| Parties | STATE. v. ROGERS. |
(Syllabus by the Court.)
To obtain reversal of a judgment of conviction in a criminal prosecution, the accused must show that actual prejudice to him resulted from the proceedings in the trial court.
Upon an indictment charging maintenance of a public nuisance by knowingly permitting unlawful sales of intoxicating liquors in a building therein described as "owned and occupied" by defendant, proof of legal title by her is not essential. Possession and control of the premises are all the statute requires.
The objection of variance between the allegation and proof of ownership in such a prosecution is not available after verdict, if the evidence complained of was not objected to when offered and no motion thereafter was made to strike it out.
(Additional Syllabus by Editorial Staff.)
Error to Criminal Court, Raleigh County.
Delia Rogers was convicted of keeping and maintaining a liquor nuisance, and she brings error. Judgment corrected and affirmed.
Dunn & Anderson, of Beckley, for plaintiff in error.
E. T. England, Atty. Gen., and Chas. Ritchie, Asst. Atty. Gen., for the State.
LYNCH, P. Delia Rogers was convicted in the criminal court of Raleigh county uponan indictment charging that she kept and maintained a public nuisance, created knowingly by permitting unlawful sales of intoxicating liquors in a house owned and occupied by her in that county. The circuit court having refused her a writ of error, she brought the case here for review upon several assignments, most of which, because immaterial and unimportant, deserve only brief notice.
Whether a female tenant named Smith, who occupied part of the building jointly owned by defendant and her husband, also therein sold intoxicating liquors, or that defendant operated a restaurant in a part of the property within the time charged in the indictment, could not, if proved, have weight in determining the guilt or innocence of the accused. Nor did she suffer prejudice because witnesses testified they had heard of the evil repute of the house three years before the return of the indictment as a place of unlawful sales of liquor. The interrogatories propounded properly limited the time covered by them; and the answers complained of did not respond to the queries. Defendant does not now complain of proof as to the reputation of the house when properly restricted, and did not in the petition for this writ assign the admission thereof as ground for reversal.
The only other basis for reasonable criticism of the judgment is the instruction propounded by defendant and refused. Its purport is that unless the state proved beyond a reasonable doubt that defendant was "the owner of the house" during the time laid in the indictment, and knew intoxicating liquors were sold therein in violation of law within that period, the jury should acquit her. That part of the instruction relative to sales of liquors with defendant's knowledge cannot be impugned as unsound, or as unsupported by competent and conclusive proof. Sales were made as charged, by defendant in person, by her avowed employés in her presence,...
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