State v. Thomas
Decision Date | 20 March 1928 |
Docket Number | (No. 5937.) |
Citation | 143 S.E. 88 |
Parties | STATE . v. THOMAS. |
Court | West Virginia Supreme Court |
Rehearing Denied April 23, 1928.
(Syllabus by the Court.)
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. [1] 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:
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:
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 had 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 court can find in any case that the officer had a bona fide belief that by his senses he had detected or discovered a violation of the law, and if in the opinion of the court the evidence of the senses on which the officer acted was sufficient grounds for the officer reaching that belief, then the arrest must be held justified, and the evidence obtained on it legal."
In a case where the officers were lawfully on certain premises, and while engaged there saw a light in the cellar of a house two or three doors away, and detected the odor of raisins cooking, the officers proceeded to the house and, entering the cellar, found a still in operation. The court, in passing on whether or not the odor of the cooking raisins was sufficient to warrant an arrest without a warrant and to seize the evidence, stated:
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