State v. Taft, 11035

• Decision Date: 15 September 1959
• Docket Number: No. 11035,11035
• Citation: 110 S.E.2d 727,144 W.Va. 704
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia. v. Burl H. TAFT.

Page 727

110 S.E.2d 727

144 W.Va. 704

STATE of West Virginia. v. Burl H. TAFT.

No. 11035.

Supreme Court of Appeals of West Virginia.

Sept. 15, 1959.

Decided Nov. 3, 1959.

Syllabus by the Court

1. The constitutional guaranty against unlawful search and seizure does not extend to search and seizure incident to a lawful arrest, and does not prohibit a search of the automobile of the accused in which he is found at the time of his arrest.

2. If an instruction on the subject of the unanimity of the jury is granted by the court, it is proper in the same instruction to tell the jury that 'the jury room is no place for pride of opinion or obstinacy, and it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other, and with open minds to give careful consideration to the views of their fellow jurors, and, if it can be done without a sacrifice of conscientious convictions, agree upon a verdict.'

3. A view is for the purpose of informing the jurors upon any pertinent inquiry being made in the trial of the case, and the things which they observe upon such view, so far as they are pertinent to show anything proper to be proved, are to be considered by them the same as any other evidence introduced in the case.

4. 'Where the testimony on an issue of fact in a criminal case is conflicting, it is for the jury to determine the weight to be attached to the reasonable inferences that can be drawn from all the facts and circumstances in evidence, and their verdict will not be set aside by the appellate court unless plainly wrong.' Syl., State v. Magdich, 105 W.Va. 585 .

5. It is ordinarily within the discretion of the trial court to permit or to refuse to permit experiments or demonstrations to be conducted before the jury, either in or out of the courtroom, and such discretion will not be interfered with unless it is apparent that it has been abused.

6. 'Though opinion evidence as a general rule is not admissible, still when the facts are such, that it is manifestly impossible to present them to the jury with the same force and clearness as they appeared to the observer, then opinion is admissible as to the conclusions and inferences to be drawn therefrom.' Pt. 4 Syl., Kunst v. City of Grafton, 67 W.Va. 20 [67 S.E. 74, 26 L.R.A.,N.S., 1201].

7. 'In a case in which the evidence is largely direct, positive and oral, prayers for instructions telling the jury they must acquit the prisoner, if there is any reasonable hypothesis consistent with his innocence, are properly denied, the rule being applicable only to issues dependent upon circumstantial evidence.' Pt. 6 Syl., State v. Wilson, 74 W.Va. 772 .

M. G. Bufano, Morgantown, for plaintiff in error.

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

CALHOUN, Judge.

The defendant, Burl H. Taft, was indicted in the Circuit Court of Monongalia County on a charge that, in January, 1957, he unlawfully transported in an automobile 'a certain quantity of alcoholic liquor, in excess of one (1) gallon'. Following his conviction by the verdict of a jury, he was sentenced by the court to serve one year in the county jail and to pay a fine of $250. The case is before this Court on writ of error to that judgment.

The same case was previously before this Court, the opinion being reported in 102 S.E.2d 149. Another case, arising from the same episode, involving a charge against the defendant of operating a motor vehicle while under the influence of intoxicating liquor, was likewise before this Court, the opinion being reported in 102 S.E.2d 152. Facts pertinent to the present case are set forth in those two opinions.

On January 8, 1957, Joseph Paul Sisler, a constable of Monongalia County, observed the defendant's automobile strike the rear of the constable's automobile which was parked on a street known as Chancery Row, near the courthouse in the City of Morgantown. Upon investigation the constable discovered that the defendant was in the driver's position in his automobile, and apparently intoxicated. Thereupon the constable arrested the defendant upon a charge of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, took him to the county jail nearby, searched him, and placed him in jail. The constable, at the time of the arrest, observed on the rear seat of defendant's automobile two one-half gallon bottles and a one-fifth gallon bottle containing what the officer believed to be intoxicating liquor.

After the defendant was placed in jail, the constable, assisted by two deputies from the sheriff's office, returned promptly to defendant's automobile and removed therefrom the two one-half gallon bottles and a one-fifth gallon bottle which were found to contain intoxicating liquor. The one-fifth gallon bottle was not completely filled. With keys obtained by the previous search of defendant's person at the county jail, the officers opened the trunk of defendant's automobile and found therein thirty one-fifth gallon bottles of alcoholic liquor. While the testimony indicates that the officers procured a warrant for the search of defendant's automobile prior to the time they removed the intoxicating liquor from the trunk of the automobile, the warrant was not introduced as a part of the evidence at the trial.

In the former opinion this Court held that the word 'transport', as used in the statute relating to unlawful transportation of alcoholic liquors, requires 'an intentional movement of the automobile by the defendant * * * though the movement need not be from a certain place to a previously intended place, or for any certain distance.' The Court also held that the constitutional guaranty against unreasonable searches and seizures '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.'

The evidence relating to the defendant's intoxication was sufficient to authorize the jury to find that defendant's arrest was justified. Constable Sisler and Chief Deputy Sheriff Hugh Brand testified that the intoxicating liquor on the rear seat of defendant's automobile was clearly visible from outside the vehicle. This Court previously held that, under such circumstances, the officers were justified in confiscating such liquor without a search warrant. The liquor found on the rear seat of the automobile was, of course, in a quantity in excess of one gallon.

When an officer makes a lawful arrest, with or without a warrant, the law accords to such officer a right to make a reasonable search as an incident of such lawful arrest, not only of the person of the one arrested but also of the automobile in which the accused may be found at the time of the arrest. State v. Roberts, 136 W.Va. 391, 68 S.E.2d 48; State v. Rigsby, 124 W.Va. 344, 20 S.E.2d 906; State v. Hatfield, 112 W.Va. 424, 164 S.E. 518; 79 C.J.S. Searches and Seizures § 26, page 795.

The defendant complains of the action of the Court in granting the following instruction tendered on behalf of the State:

'The Court instructs the Jury that upon the trial of a criminal case by a jury the law contemplates the concurrence of twelve minds in the conclusion of guilt before a conviction can be had. Each individual juror must be satisfied beyond a reasonable doubt of the defendant's guilt before he can rightly, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the jury, and should realize that his own mind must be convinced beyond all reasonable doubt of the defendant's guilt before he can consent to a verdict of guilty. Therefore, if any individual juror, after having duly considered the evidence in the case, the instructions of the Court, the arguments of counsel, and consulting with his fellow jurors, should entertain a reasonable doubt of defendant's guilt, it is his duty not to surrender his own convictions simply because all, or some, of the other jurors entertain a different opinion.

'And in this connection the jury is further instructed that the jury room is no place for pride of opinion or obstinacy, and it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other, and with open minds to give careful consideration to the views of their fellow jurors, and, if it can be done without a sacrifice of conscientious convictions, agree upon a verdict.'

Defense counsel object to the second paragraph of the instruction. While the law contemplates the free and deliberate concurrence of all jurors as a prerequisite of a verdict, this Court has expressed its disapproval of instructions couched in language tending to foster disagreement among or obduracy on the part of jurors. The court in its instructions must neither encourage disagreement nor coerce agreement. 'It is proper for a trial court to tell the jurors that it is their duty to agree, if possible, and that in conferring they should respect each other's opinion with a disposition to agree thereto, if based on sound reasoning.' Emery v. Monongahela West Penn, 111 W.Va. 699, 709, 163 S.E. 620, 624, 88 C.J.S. Trial § 297, page 810.

In the case of Robertson v. Hobson, 114 W.Va. 236, 171 S.E. 745, the Court, in point one of the syllabus, with reference to an instruction dealing with the unanimity of the jury stated: 'But such an instruction embodies principles so generally understood by jurors and so fully covered by the oath of the juror, that refusal to give the instruction would rarely, if ever, constitute prejudicial error.' In the case of State v. Sibert, 113 W.Va. 717, 169 S.E. 410, a similar instruction was refused because it failed to include language dealing with the duty of jurors to consult with each other in a good faith effort to agree. In the State of Virginia it is held, in both civil and criminal cases, that it...