State v. Slat

• Decision Date: 10 March 1925
• Docket Number: (No. 5124.)
• Citation: 127 S.E. 191
• Court: West Virginia Supreme Court
• Parties: STATE. v. SLAT.

127 S.E. 191

STATE.

v.SLAT.

(No. 5124.)

Supreme Court of Appeals of West Virginia.

March 10, 1925.

(Syllabus by the Court.)

Before evidence secured by virtue of a search and seizure warrant can be introduced in a criminal prosecution resulting from such search and seizure, it is incumbent upon the prosecution to show that the search and seizure warrant was valid. The warrant itself is the best evidence of its contents and validity, and if it be not produced, verbal evidence of its contents cannot be introduced until it has been shown that the warrant cannot be produced.

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Marion County.

Tom Slat was convicted of operating a moonshine still, and he brings error. Reversed, verdict set aside, and new trial awarded.

Russell L. Furbee, of Parkersburg, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

LIVELY, P. Convicted by a jury in the criminal court of Marion county and sentenced to confinement for two years in the penitentiary, on an indictment for operating, etc., a moonshine still, and being refused a writ of error by the circuit court, defendant prosecutes error to this court.

Officers, armed with authority of a paper issued by a justice of the peace, and which they termed a search warrant, upon search of defendant's premises, found a quantity of moonshine liquor in his dwelling, and discovered a moonshine still, a quantity of mash, and moonshine liquor in an excavation under his chicken house, reached by a trap door in the floor. These contraband articles were confiscated by them and a portion thereof introduced in evidence on the trial, over defendant's objection. He was placed under arrest, conveyed before Justice Block-er, and held under bond. One of the officers made a return on the search and seizure warrant, which appears to have been mailed by Justice Blocker, together with the bond, to Justice of the Peace Ashcraft, who issued it, to his address at Grant Town. Lieutenant Layman of the state constabulary was supposed to have made the complaint on which the search warrant was issued by Justice Ashcraft. Layman was in charge of the raid and had the warrant on which he made a return. He was not a witness. A subpœna was issued for Justice Ashcraft by the state on the day of the trial, but no attempt was made to serve it, except to ascertain over the telephone that he was not at home. The search warrant was not produced, and its absence is accounted for as above set out. The state's evidence, secured by reason of the search warrant (and all of the material evidence was secured in that way), was objected to by defendant as improper, but the trial court held that, as the officers said they had a search warrant, it would be assumed that they had a proper search warrant, duly executed, for the search of defendant's premises, and permitted the evidence to go to the jury. The case turns upon whether the evidence was admissible in the absence of the search warrant, as thus accounted for.

Any search of a person's house without a valid search warrant is an unreasonable search,...