State v. Sixo, (No. 2895.)

• Court: Supreme Court of West Virginia
• Writing for the Court: MASON
• Citation: 77 W.Va. 243,87 S.E. 267
• Parties: STATE . v. SIXO.
• Decision Date: 30 November 1915
• Docket Number: (No. 2895.)

87 S.E. 267
77 W.Va. 243

STATE .
v.
SIXO.

(No. 2895.)

Supreme Court of Appeals of West Virginia.

Nov. 30, 1915.

[87 S.E. 267](Syllabus by the Court.)[87 S.E. 268]

Error to Circuit Court, Monongalia County.

Andy Sixo was convicted of violating the prohibition law, and brings error. Reversed, and new trial awarded.

Van A. Barrickinan, of Morgantown, for plaintiff in error.

Fred O. Blue, of Phillippi, and Jno. T. Simms, of Charleston, for the State.

MASON, J. At the April term, 1915, of the circuit court of Monongalia county, Antly Sixo was indicted, charged with unlawfully manufacturing, selling, offering, keeping, storing, and exposing for sale and soliciting and receiving orders for liquors, and absinthe and drink compounded with absinthe, in violation of section 3, c. 13, Acts of the Legislature of 1913. He appeared and moved to quash the indictment, which motion was overruled. The indictment is in the form prescribed by the said act, section 3. The defendant then moved the court to require the prosecuting attorney to file a bill of particulars, which motion was overruled. The defendant pleaded not guilty, and issue was thereon joined. The case was submitted to a jury, and verdict of guilty returned. The defendant moved the court to set aside the verdict and grant him a new trial. The court refused to set aside the verdict, and entered judgment against defendant. To the order of the court in refusing to set aside the verdict and grant a new trial, and entering judgment, the defendant excepted. The evidence is certified by bill of exceptions No. 1. The defendant also complains of two instructions given the jury by the court, on behalf of the state, over his objection. These instructions are made part of the record by bill of exceptions No. 2. The defendant further complains that the court erred in admitting certain evidence at the instance of the state, and in refusing to admit other evidence at the instance of the defendant, certified in bill of exceptions No. 3. The facts as they appear from the record are that on the 1st day of April, 1915, the defendant was at the Baltimore & Ohio Railroad Company's depot at Morgantown, in Monongalia county, and had in his possession—

"a split basket with two bottles of whisky, quarts, two quarts of rum, and four pints of beer. He had a label pasted on the side of the basket in writing."

The basket was covered with paper, but the bottles in the basket could be seen through this covering. It is agreed by counsel that the label on the basket reads, "4 Qts. whiskey 2 Qts. rum, 4 pts. beer. For personal use." The size of the label on the basket, as testified to by witnesses for the state, is 6 inches by 3 3/4 inches; the height of the highest letter 3/4 inch, the lowest and smallest letter is 1/8 inch. This measurement was made by a witness in the presence and view of the jury. The writing was in English. This is the substance of all the evidence submitted by the state. The defendant was examined as a witness in his own behalf. He admits having in his possession at the railroad station, at the time mentioned, the basket containing the liquors, marked or labeled as stated, but says he was on his way from Point Marion, Pa., where he purchased the liquors, and says:

"Wanted to drink it myself; wanted to keep it. Work too hard and after work drink some."

He was then asked this question:

"Did you intend to sell, offer, keep, store, or expose for sale or solicit or receive any orders —sell it?"

The state objected to this question, and the court refused to permit the witness to answer, to which ruling the defendant excepted. It does not appear what the answer would have been had the witness been permitted to answer. These are all the material facts proved by the state or the defendant.

There is no direct evidence that the defendant sold or offered for sale any of the liquors in his possession. The evidence is insufficient to authorize a verdict for keeping, storing, or selling liquors, unless it may be said that the possession of the liquors, under the circumstances, justified the jury in so inferring. The trial court seemed to be of opinion that this might be done by authority of the Acts of the Legislature of 1915, c. 7, § 31, amending chapter 13 of the Acts of the Legislature of 1913 (Code 1913, c. 32a [secs. 1280-1305]), and gave to the jury the following instructions, over the objection of the defendant:

"No. 1. The jury are instructed that under the laws of the state of West Virginia it is unlawful for any person to bring or carry into the state or from one place to another within the state, even when intended for personal use, liquors exceeding in the aggregate one-half of one gallon in quantity, unless there is plainly printed or written on the side or top of the suit

[87 S.E. 269]

case, trunk or other container (which includes a basket) in large display letters, in the English language, the contents of the container, or basket, and the quantity of liquor contained therein, and if such statement does not truthfully show the contents of such container, 'in large display letters, ' the liquors in possession of the defendant shall be conclusive evidence of the unlawful keeping, storing, and selling of liquors by the defendant having such liquors in his possession.

"No. 2. If the jury believe from the evidence in this case that the defendant, Andy Sixo, on or since the 1st day of March, 1915, brought or carried into Monongalia county, in West Virginia, or from one place to another within said county in said state, two quarts of whisky, two quarts of rum, and four pints of beer, and that said liquor was seized while in the possession of the defendant, in said county, and that there was pasted on the side of a basket containing said liquor a piece of paper on which was written, in the English language, but not in large display letters, the words and figures, '4 Qts. whiskey 2 Qts. rum, 4 pts. beer, ' then they must find the defendant guilty as charged in the indictment, and if the jury further believe that the said written statement truthfully and correctly stated the contents of said basket and the quantity and kind of liquors contained therein, and that the said statement was in large display letters, still the possession of said quantity of whisky by the defendant, at the time the same was seized, in said county, is prima facie evidence that the defendant, at the time aforesaid, in the county aforesaid, did unlawfully sell, store, and keep intoxicating liquors, and then the burden of proof is on the defendant in this case to overcome such prima facie case."

These instructions are based on said section 31, chapter 7, of the Acts of 1915. This section creates a new and substantive offense. It is made a misdemeanor under this section—

"for any person to bring or carry into the state, or from one place to another within, the state, even when intended for personal use, liquors exceeding in the aggregate one-half of one gallon in quantity, unless there is plainly printed or written on the top or side of the suit case, trunk or other container, in large display letters, in the English language, the contents of the container or containers, and the quantity and kinds of liquors contained therein."

The punishment for such violation is the same as prescribed by section 3, c. 13, of the Acts of the Legislature of 1913, and in addition thereto the liquors in possession of the—

"person violating this section may be seized, and shall be conclusive evidence of the unlawful keeping, storing and selling of same by the person having such liquors in his possession."

But it is insisted by counsel for plaintiff in error that said section 31 of chapter 7 of the Acts of the Legislature of 1915 is unconstitutional and void. Counsel argues at great length to prove that the Legislature could pass no valid act making it an offense for a person to have in his possession liquors, unless for some improper purpose. The case of the State v. Gilman, 33 W. Va. 146, 10 S. E. 2S3, 6 L. B, A. 847, is cited, among others, and relied upon as sustaining this contention. This court held in State v. Gilman that a statute—

"which provides that no person, without a state license therefor, shall 'keep in his possession, for another, spirituous liquors, ' etc., is unconstitutional and void."

Under the statute involved in that case it was made unlawful for any person, without a state license therefor, to keep in his possession for another spirituous liquors, but section 31, c. 7, supra, now under discussion, only makes it—

"unlawful for any person to bring or carry into the state, or from one...