State v. Thomas

• Decision Date: 20 March 1928
• Docket Number: 5937.
• Citation: 143 S.E. 88,105 W.Va. 346
• Parties: STATE v. THOMAS.
• Court: West Virginia Supreme Court

143 S.E. 88

105 W.Va. 346

STATE v. THOMAS.

No. 5937.

Supreme Court of Appeals of West Virginia.

March 20, 1928

Submitted March 13, 1928.

Rehearing Denied April 23, 1928.

Syllabus by the Court.

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.

Where an indictment charges a defendant with unlawfully and feloniously owning, operating, maintaining, possessing, and having an interest in a certain apparatus, for the manufacture of intoxicating liquors, commonly known as a moonshine still, an instruction telling the jury that, if they believed from all the evidence and beyond a reasonable doubt that the defendant owned, operated, maintained, or had in his possession, or had any interest in, a moonshine still as charged in the indictment, then they should find the defendant guilty, sufficiently charges intent, for the indictment becomes a part of said instruction, and must be read in connection therewith.

In such case, a second instruction, the primary object of which was to tell the jury that, although the indictment charged the commission of said offenses in the conjunctive, proof of any one of the said offenses beyond a reasonable doubt, was sufficient to warrant a verdict of guilty, is not open to the criticism that it lacks the element of criminal intent, when read in connection with the preceding instruction.

Where one instruction has been given, fully covering a principle of law applicable to the case, it is not error to refuse another instruction to the same effect, although differently expressed.

Error to Circuit Court, Marion County.

D. E Thomas was convicted of owning, operating, maintaining, possessing, and having an interest in a moonshine still, and he brings error. Affirmed.

James A. Meredith and Ward Lanham, both of Fairmont, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

WOODS J.

Defendant was convicted in the criminal court of Marion county and sentenced to two years in the penitentiary and fined, on an indictment for unlawfully and feloniously owning, operating, maintaining, possessing, and having an interest in, etc., a moonshine still. A writ of error having been refused by the circuit court of said county, defendant prosecutes error to this court.

On or about 4 o'clock in the afternoon of December 12, 1925, E. L. Hawkins, a federal prohibition officer, together with State Trooper Gladwell and certain other officers, being in possession of a warrant issued on the information of Gladwell for the search of the house and premises of defendant, proceeded to Peacock Terrace, a suburb of Fairmont, for the purpose of executing the same. On alighting from the car, they were at once apprised by the odor present that a moonshine still was under operation in the immediate vicinity. And, by means of the increasing pungency of this odor near the dwelling they were led into the house and upstairs to the bathroom, where a 60-gallon moonshine still was found in operation, and where, as one officer puts it, "the fumes of the odor from it was so strong we could hardly stay in the room." The still was actually going at the time, and the liquor from the coil was dripping into a bucket and wash boiler. According to Gladwell:

"The hot plate was setting down in the bathtub, and the still was setting on the hot plate. There was a rubber hose running from the hot plate to a gas connection. The gas was turned on and burning. The still was filled up with mash. There was a rubber hose running in at the top and the water running out and running into the bathtub under the still and then running down the drain pipe. The liquor was running from the still into charcoal, and from that into a copper wash boiler setting there."

Twenty-three gallons of apple brandy whisky, 3 full barrels of apple mash, 5 empty mash barrels, 200 pounds brown sugar, 10 empty whisky cans, 2 funnels, one copper wash boiler used to catch whisky in, three pieces rubber hose used on the still, and several small kettles and dippers were also found in the house. Defendant was not present at the time. However, he was soon after apprehended on his way home, and, after reaching the house, said to one of the officers:

"Well, boys, you got me; I am in a hell of a shape with this stuff on me."

He did not testify.

The principal ground of error stressed is that the search warrant is invalid. We have said that on the question of its validity the warrant itself is the best evidence. State v. Slat, 98 W.Va. 448, 127 S.E. 191. The warrant under consideration here is admittedly valid on its face. It purports to have been issued on a complaint duly sworn to by a member of the department of public safety. The sole attack on its validity is that the affidavit was not in fact sworn to, and is therefore violative of the provision of our Constitution that no such warrant shall issue "except upon probable cause, supported by oath or affirmation." Article 3, § 6. Such attack is founded alone on the cross-examination of the justice who issued the warrant, as follows:

"Did Mr. Gladwell swear to this complaint? A. Well, I don't know as I swore him to that particular complaint; no, sir.

Q. The fact of the matter was, that Mr. Gladwell merely signed the complaint and you acknowledged it, but did not swear him. Is that not true? A. Yes, sir.

Q. Did you say that was true? A. That is true; yes, sir."

The state seeks to uphold the warrant on the grounds: (1) That it is against public policy to permit the officer to impeach his act; and (2) even if not so, that the evidence of the justice here relied on is insufficient to overbear a paper valid on its face. Counsel for both the state and the defendant admitted in argument on the hearing that the exact point raised here has never been determined by this court. However, we do not decide this question, since our view of the case makes it immaterial.

From the evidence, we find that as the officers alighted from their car, odor from a moonshine still in operation was in evidence. Hawkins, stated:

"As soon as we got out of the car, I smelled the odor of a still in operation." This was outside the close of the defendant. The officers were unerringly led by means of the growing intensity of this odor to the still in operation in the house of the defendant. An offense can be said to be committed in the presence of an officer when he sees it with his own eyes or sees one or more series of acts constituting the offense and is aided by his other senses. State v. Lutz, 85 W.Va. 330, 101 S.E. 434. In such case no warrant is necessary. Here the sense of smell told the officer that a felony was being committed within the house of the defendant. In U.S. v. Rembert (D. C.) 284 F. 996, which involved the question of whether or not an officer bad the right to arrest a person whom he believed to be intoxicated and search his person for liquor without a warrant, the court said:

"If the

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