State v. Sixo.
| Decision Date | 30 November 1915 |
| Docket Number | No. 2895.,2895. |
| Citation | 77 W.Va. 243 |
| Court | West Virginia Supreme Court |
| Parties | State v. Sixo. |
The form of the indictment prescribed in section 3, chapter 13, acts of the Legislature of 1913, is sufficient to give the defendant information of the character and cause of tne accusation against him. (p.253).
The law in relation to bills of particulars applies to criminal and civil cases. The right to require a bill of particulars in criminal cases can be exercised only where the law allows general statements in the pleading, and justice requires further information of the accusation. The motion for a bill of particulars in criminal cases should be made before pleading and should be supported by affidavit stating specifically the information desired, (p. 253).
Marked Containers Offense.
The act of the Legislature of 1915, ch. 7, sec. 31, providing that, , creates a new and substantive offense, (p. 248).
ers Offense Validity of Statute.
It was within the legislative power to enact the statute named in the foregoing point, and said part of said statute creating such offense, does not conflict with any of the provisions of the constitution of the United States or of this State, (p. 248).
Validity of Statute.
One part of sec. 31, ch. 7, of the acts of the Legislature of 1915, provides that "the liquors in the possession of any person violating this section (meaning said section 31), may be seized, and shall be conclusive evidence of the unlawful keeping, storing, and selling of the same by the person having such liquors in his possession."
That part of said section which makes such possession "conclusive evidence" is unconstitutional and void. (p. 250).
Though one provision of a statute is repugnant to the constitution, yet if it is distinct in operation, and separable from the other parts of the statute, that provision will be ignored and the other parts stand, (p. 251).
dence Instructions.
An instruction which tells the jury "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 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 said container, "in large display letters", the liquors in the 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", is erroneous, (p. 247).
An instruction which tells the jury that if they "believe from the evidence in this case that the defendant, Andy Sixo, on or since the first 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 whiskey, 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", is erroneous, (p. 252).
An instruction, as applied to the facts in this case, which tells the jury that if they believe from the evidence "that said written statement truthfully and correctly stated the contents of said basket and quantity and kind of liquors contained therein, and that said statement was in large display letters, still the possession of said quantity of whiskey 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 upon the defendant in this case to overcome such prima facie case'is erroneous, (p. 252).
The opinion of witnesses should never be received in evidence if all the facts can be ascertained and made intelligible to the jury, or if they are such as men in general are capable of comprehending and understanding. The general rule is that witnesses must testify to facts, and not to opinions, (p. 254).
Answer to Questions.
An exception taken upon the trial, to the refusal of the court to permit a question propounded to a witness to be answered, will not be considered by the appellate court unless the expected answer was disclosed to the court at the time of the ruling. The appellate court in reviewing the judgment on writ of error, can not assume in such case that an answer favorable to the exceptor would have been given, (p.254).
Error to Circuit Court, Monongalia County. Andy Sixo was convicted of violating the prohibition law, and brings error.
Reversed, and netv trial awarded.
Van A. Barrickman, for plaintiff in error. Fred O. Blue and J no. T. Simms, for the State.
At the April term 1915, of the circuit court of Monongalia County, Andy 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, chapter 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 re- fused 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 verdict 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 first day of April, 1915, the defendant was at the B. & 0. R. R. Go's, depot at Morgantown, in Monongalia County, and had In his possession 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, The size of the label on the basket, as testified to by witnesses for the State, is six inches by 2-3/4 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, Pennsylvania, where he purchased the liquors, and says: He was then asked this question: "Did you Intend to sell, offer, keep, store or expose for sale or solicit or receive any order 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...
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