State v. Rudy, (No. 5125.)

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 127 S.E. 190
• Parties: STATE. v. RUDY.
• Docket Number: (No. 5125.)
• Decision Date: 10 March 1925

127 S.E. 190

STATE.
v.
RUDY.

(No. 5125.)

Supreme Court of Appeals of West Virginia.

March 10, 1925.

[127 S.E. 190](Syllabus by the Court.)

Error to Circuit Court, Marion County.

D. H. Rudy was convicted of possessing a moonshine still, and he brings error. Affirmed.

George A. Vincent and Curt E. Amos, both of Fairmont, for plaintiff in error.

E. T. England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for the State.

MILLER, J. Defendant was convicted in the criminal court of Marion county, on an indictment charging that he "did unlawfully and feloniously own, operate, maintain, possess and have an interest in a certain apparatus, mechanism and device for the manufacture or intoxicating liquors commonly known as a 'moonshine still.' "

First, it is asserted by counsel for defendant that the use of the word "or" in the indictment charges the offense in the disjunctive, and that the part of the indictment following the word "or" does not charge an offense when standing alone, or if it alleges an offense, such offense would be only a misdemeanor; wherefore the indictment fails to charge the defendant with a felony. To support this proposition they cite the case of State v. Miller, 68 W. Va. 38, 69 S. E. 365. In that case the indictment charged in the disjunctive the doing of a number of acts, any one of which constituted an offense under the statute; and it was held that the use of the disjunctive conjunction "or, " in stead of the copulative conjunction "and, " rendered the indictment bad for uncertainty. The rule there stated does not apply here. In the case at bar, it is evident that the use of the word "or" is simply a typographical error; and that "of" was meant. No other construction could possibly be placed on the language used. "Neither verbal nor grammatical inaccuracies nor the misspelling of words in an indictment are fatal to it, where they do not affect the sense, and where from the whole context the words as well as the meaning can be determined with certainty by a person of ordinary intelligence." State v. Halida, 28 W. Va. 499. See, also, State v. McGahan, 48 W. Va. 438, 37 S. E. 573. The use of the word "or" here does not affect the sense of the language, when it is so evident that the word "of" was meant; and there can be no doubt as to the intention of the pleader.

Defendant objected to the introduction in evidence of the stills, pots, mash, hydrometers, etc., found by the officers on defendant's premises and in his possession,...