State v. De Spain

Decision Date18 May 1954
Docket NumberNo. CC812,CC812
Citation139 W.Va. 854,81 S.E.2d 914
CourtWest Virginia Supreme Court
PartiesSTATE, v. DE SPAIN.

Syllabus by the Court.

The action of a trial court in overruling a motion to quash a search warrant cannot be certified to this Court under the provisions of Code, 58-5-2, inasmuch as a search warrant is not a summons, return of service, or pleading within the meaning of that section.

John G. Fox, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for plaintiff.

Bonn Brown, Jacob S. Hyer, Elkins, Milford L. Gibson, Kingwood, for defendant.

BROWNING, Judge.

This case is here upon certificate from the Circuit Court of Randolph County. On October 11, 1953, E. P. Phares, Mayor of the City of Elkins, in his capacity as justice of the peace, ex officio, upon complaint of J. R. Stalnaker that the latter 'has cause to believe and does believe that alcoholic liquors * * * are being manufactured, sold * * *.', in a certain described two story building in the City of Elkins occupied by the Elks Club 'contrary to the laws of the State of West Virginia, and that the facts for such belief are possession of an affidavit alleging the sale of alcoholic liquors within the Elks Club on the ___ day of October, 1953.', issued a search warrant. Pursuant to the authority of this warrant of search and seizure, officers of the police department of the City of Elkins, on the 11th day of October, 1953, searched the premises described in the warrant, and seized a substantial quantity of alcoholic liquors. At that time and place, the defendant was arrested, and on October 13, 1953, an indictment was returned by a grand jury, regularly convened in the Circuit Court of Randolph County, charging the defendant with unlawful possession for sale of alcoholic liquors. The defendant moved the Circuit Court of Randolph County, on October 19, 1953, to quash the search warrant, the motion being overruled on December 14, 1953, and on motion of the court, at the request of counsel for the State and the defendant, the ruling was certified to this Court, and subsequently docketed for hearing.

The specific question certified to this Court is as follows:

'Was the affidavit or verified complaint, in which the alleged facts for the belief of affiant were as follows: 'Possession of an affidavit alleging the sale of alcoholic liquors within the Elks Club on the ___ day of October, 1953,' upon which the search warrant was issued, a sufficient compliance with Chapter 60, Article 6, Section 18, of the West Virginia Code, to warrant the issuance of the search warrant in question?'

Prior to the enactment of Chapter 4, Article 6, Section 18, Acts of the Legislature, 1935, this Court had held on several occasions that a search warrant, alleging a violation of the liquor laws based upon information rather than facts, was sufficient compliance with the constitutional provisions relative to unreasonable search. However, the last mentioned Act, now Code, 60-6-18, provides that: 'If there be complaint on oath of affirmation supported by affidavit or affidavits setting forth the facts for such belief that alcoholic liquors are being manufactured, sold, kept, * * *.' (Italics supplied.), that the proper official may issue such warrant of search and seizure.

In State v. Lacy, 118 W.Va. 343, 190 S.E. 344, 346, this Court, in construing the last mentioned statute, held that a search warrant based upon a complaint, supported by an affidavit setting forth the 'sale' or "possession & sale" as the only facts of the affiant's belief that alcoholic liquors were being manufactured, sold, etc., is insufficient as not constituting a sufficient statement of 'facts'. However, in State v. Rigsby, 124 W.Va. 344, 20 S.E.2d 906, 908, a search warrant was held sufficient where the complaint alleged that the affiant had cause to believe that alcoholic liquors were being transported, etc., in an automobile, satisfactorily described, and "that the facts for such belief are that the affiant knowing the said Elbert Rigsby to be a bootlegger and having received information that the said Elbert Rigsby would deliver whiskey to 840 1/2 4th Avenue in the above said automobile.' * * *' The Court said: 'The words in the complaint, 'knowing the said Elbert Rigsby to be a bootlegger', do not state a conclusion of law as suggested by plaintiff in error. They are a statement of fact as completely as if it had been said that he was a farmer, a doctor or a carpenter.' It is to be noted that the warrant was upheld by a divided Court, Judge Kenna filing a strong dissent in which Judge Riley concurred. This Court has had this issue before it in no other case since the 1935 Amendment.

The affidavit in the instant case, which the State maintains is a 'fact' sufficient...

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14 cases
  • State v. Lewis
    • United States
    • West Virginia Supreme Court
    • 6 Julio 1992
    ...upon the trial of an indictment in a criminal case." 154 W.Va. at 31-32, 173 S.E.2d at 177. More directly on point is State v. De Spain, 139 W.Va. 854, 81 S.E.2d 914 (1954), where the circuit court certified a question under W.Va.Code, 58-5-2, asking whether it had ruled correctly in refusi......
  • State v. Butler, 16-0543
    • United States
    • West Virginia Supreme Court
    • 9 Mayo 2017
    ...(answering certified question on basis it raised issue of jurisdiction, as provided under W.Va. Code § 58-5-2 ); State v. De Spain, 139 W.Va. 854, 81 S.E.2d 914 (1954) (finding Court did not have jurisdiction to answer certified question addressed to sufficiency of search warrant which fell......
  • Roberts v. Consolidation Coal Co.
    • United States
    • West Virginia Supreme Court
    • 19 Julio 2000
    ...limitations on the right to appeal, such limitations are exclusive, and cannot be enlarged by the court.' State v. DeSpain, 139 W.Va. 854[, 857-58], 81 S.E.2d 914, 916 (1954)."); Asbury v. Mohn, 162 W.Va. 662, 665, 256 S.E.2d 547, 548-49 (1979) ("The statute dealing with appella[te] review ......
  • Martin v. Hamblet
    • United States
    • West Virginia Supreme Court
    • 21 Noviembre 2012
    ...limitations on the right to appeal, such limitations are exclusive, and cannot be enlarged by the court.” State v. De Spain, 139 W.Va. 854, [857,] 81 S.E.2d 914, 916 (1954).’ Syllabus Point 1, West Virginia Department of Energy v. Hobet Mining & Construction Co., 178 W.Va. 262, 358 S.E.2d 8......
  • Request a trial to view additional results

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