State v. Taft

• Decision Date: 04 March 1958
• Docket Number: No. 10907,10907
• Citation: 102 S.E.2d 149,143 W.Va. 369
• Parties: STATE of West Virginia v. Burl H. TAFT.
• Court: West Virginia Supreme Court

Page 149

102 S.E.2d 149

143 W.Va. 369

STATE of West Virginia v. Burl H. TAFT.

No. 10907.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1958.

Decided March 4, 1958.

Syllabus by the Court

1. 'Our constitutional guaranty against unreasonable searches and seizures, providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or things to be seized, does not prohibit a seizure without such warrant, where there is no need of a search, but the contraband subject matter is fully disclosed and open to any one of the senses.' Point 1, Syllabus, State v. Thomas, 105 W.Va. 346 .

2. To constitute transportation of intoxicating liquor in an automobile, within the meaning of Section 2 of Article 1, and Section 6 of Article 6, of Chapter 4 of the 1935 Acts of the Legislature, an intentional movement of the automobile by defendant is necessary, though the movement need not be from a certain place to a previously intended place, or for any certain distance.

M. G. Bufano, John D. Downes, Morgantown, for plaintiff in error.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant, Burl H. Taft, was indicted by a grand jury of the Circuit Court of Monongalia County, at the January, 1957, Term. The indictment charged that defendant did, in January, 1957, 'without a State license * * * transport a certain quantity of alcoholic liquor, in excess of one (1) gallon * * *', in an automobile. The case was tried to a jury, the trial commencing on the 11th day of February, 1957, and, on the following day, the jury returned a verdict of guilty. Judgment on the verdict was that defendant be confined in jail for a term of one year.

On January 8, 1957, Joseph Paul Sisler, a constable of Monongalia County, observed the automobile of defendant, which had been parked on a street, back 'into another car' and 'pulled forward, then, instead of pulling out into the street, and hit another car in front of him'. The constable then crossed the street to the automobile of defendant, observed defendant in the automobile, 'figured he was drunk', and, according to his own testimony, then placed defendant under arrest and went with him to the county jail, a short distance from defendant's automobile, where defendant was searched, and later placed in a cell. The constable, at the time of the arrest, had observed in defendant's automobile two 'half-gallon bottles' and a 'fifth bottle laying right beside it', containing what he believed to be alcoholic liquors. Other officers, deputies sheriff in Monongalia County, and members of the Department of Public Safety, were present at the jail at the time defendant was searched, and some of the deputies assisted in searching defendant and placing him in the cell. Testimony given by some of the officers supported the position of the State to the effect that defendant was intoxicated at the time of his arrest.

After defendant was placed in the cell, the constable and two of the deputies went to the automobile of defendant, removed therefrom the two one-half gallon bottles and the one-fifth gallon bottle. Then, using a key obtained by the search of defendant's person, the officers opened the trunk of defendant's automobile and found therein thirty bottles, each containing one-fifth gallon of alcoholic liquor. Evidence of the search of the trunk, and of the liquor found therein, was admitted on the trial. No warrant for the arrest of defendant, or for the search of his automobile, had issued at the time he was taken to the jail. Though there is evidence that a search warrant had issued, before the trunk was opened, directing the search of defendant's automobile, no search warrant was produced, nor was its absence explained, at the trial. Further facts are stated in the opinion, in State v. Taft, W.Va., 102 S.E.2d 152.

Defendant vigorously denies that he was intoxicated at the time the constable observed him in his automobile. He is supported, to some extent, by opinions of others. He also contends that the only movement of his automobile at any time material was occasioned by his accidental release of the brake, permitting the automobile to 'drift' against another automobile.

In State v. Roberts, 136 W.Va. 391, 68 S.E.2d 48, we held: '1. Where an officer of a municipality has made a lawful arrest for illegal transportation of alcoholic liquor, he may search the vehicle then under the control of the person arrested and being used in the illegal transportation.' This being the rule, we need inquire only whether the constable was justified, in making the arrest, for the reason that a violation of law by defendant was observed by him. In State v. Mullins, 135 W.Va. 60, 62 S.E.2d 562, 563, we held: 'Appearing in a public place in an intoxicated condition constitutes a misdemeanor, for which, if committed in his presence, a duly appointed and qualified police officer of a municipality of this State, acting as such, may arrest an offender without a warrant.' In the instant case there is evidence amply supporting the position of the State that defendant was intoxicated at the time he was first observed by the constable. There is also ample evidence to support the theory of the State that defendant was observed by the officer to transport alcoholic liquors in a quantity in excess of one gallon, as will be further pointed out in this opinion. Under the authorities, therefore, no search warrant was necessary as to the search actually made of defendant's automobile, and the evidence obtained by virtue of the search was, therefore, admissible. See State v. Thomas, 105 W.Va. 346, 143 S.E. 88; State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A.L.R. 1398; State v. Andrews, 91 W.Va. 720, 114 S.E. 257; State v. Brown, 101 W.Va. 160, 132 S.E. 366; Bess...