State v. Willie Tomlin.

• Decision Date: 27 April 1920
• Citation: 86 W.Va. 300
• Court: West Virginia Supreme Court
• Parties: State v. Willie Tomlin.

86 W.Va. 300

State

v.Willie Tomlin.

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1920.

Decided April 27, 1920.

1. Criminal Law Intoxicating Liquors Where Statute Provides no Penalty Act is Indictable as at Common Law.

Where a statute forbids a thing affecting the public, but is silent as to any penalty, the doing of it is indictable, and punishable as at common law. Applied in a case where the statute on which the indictment was founded, makes it unlawful for one to have in his possession a "moonshine still" but provides no penalty or other method of punishment? (p. 301).

2. Indictment and Information On Indictment for Felony Un- der Statute Which Includes Offense for Which No Penalty is Provided, Latter Offense May Be Punished As at Common Law.

Where one of the offenses charged and inhibited by the statute is a felony, and necessarily includes another offense also inhibited thereby and charged in the indictment, but for which no penalty is prescribed, the accused may be acquitted of the greater offense but found guilty of the lesser included therein and punished as at common law, and in such case it is error for the trial court to strike out of the indictment the the charge of the lesser offense? (p. 303).

3. CR iminal Law Supreme Court of Appeals Has No Jurisdiction on Certification of Question Presented by Bill of Particulars.

This court has no jurisdiction, under section 1 of chapter 135 of the Code, to respond to a question certified thereunder, presented by a bill of particulars, not a pleading nor subject to demurrer or motion to quash? (p. 304).

Certified Questions from Circuit Court, Lincoln County.

Willie Tomlin was indicted for owning, operating, and possessing an apparatus for the manufacture, of intoxicating liquors. Demurrer to indictment and bill of particulars sustained as to the indictment in part, and questions certified.

Reversed and demurrer overruled in part.

E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, and E. E. Young, for the State.

Jacob D. Smith, for defendant.

Miller, Judge:

In an indictment under section 37, chapter 108 of the, Acts of 1919, the first count charges that defendant did unlawfully and feloniously own, operate and maintain, and have in his possession an apparatus for the manufacture of intoxicating liquors, commonly known as a moonshine still; the, second that he did on the same day unlawfully and feloniously own, operate, maintain and have in his possession an apparatus and device for the manufacture of intoxicating liquors which said device was of like kind and character to what is commonly known as a moonshine, still.

Upon demand by defendant the State filed a bill of particulars, specifying that defendant did in the month of June 1919, have in his possession a moonshine still manufactured from two galvanized wash tubs, secreted in the loft of his mother's house, which he obtained from one Everett Vance; that before coming into possession of said still defendant knew the same had been used in the manufacture of whiskey; that it was not equipped at the time it was found in defendant's possession with any cap, worm or other fixture, but that there was evidence of mash in the bottom of it.

To the indictment and bill of particulars the defendant demurred. The court sustained the demurrer to the indictment so far as it charged defendant with having in his possession an apparatus for the manufacture of intoxicating liquors, but overruled it as to the other allegations therein.

The questions certified to us on these rulings are:

1. Is the offense of having in one's possession a "moonshine" still, or any device of like kind or character, punishable under Sec. 37, chapter 108 of the Acts of the Legislature of 1919?

2. Is it an indictable offense to have in one's possession, under said section of said act, a part of a moonshine still?

In prescribing the grade and penalty for the offenses charged, the statute says: "Any person owning, operating, or having any interest in any moonshine still, shall be guilty of a felony, and upon conviction thereof shall be fined not less than three hundred dollars nor more than one thousand dollars, and be confined in the penitentiary not less than two nor more than five years." It will be observed that no penalty in express terms is imposed for having in one's possession a moonshine still, and it was the opinion of the circuit court that because of this omission no indictment would lie against the accused for this offense^ wherefore this charge in the indictment was stricken out. Of course the other offenses charged for which penalties are imposed made the indictment good as to them, and if the court had been correct in its conclusion that having in one's possession such a still is not an indictable, offense, by regarding the charge of that offense a separate count, its action on the demurrer thereto would have been justified and proper.

But we think the court was in error in holding that having-in one's possession a moonshine still inhibited by the statute is not an indictable offense. The authorities cited by the court do not seem to bear out its conclusion. These and many others hold that where a statute forbids a thing effecting the public but is silent as to any penalty, the doing of it is indictable at the common law. The effect of such statute is to enlarge, the common law. Bishop on Stat. Crimes, (3rd ed.), sees. 138, 873; 1 Bishop New Grim. Law, (8th ed.), sees. 236, 237; 1 Russcl on Crimes, (7th Eng. & Can. Ed.), 11; Ex parte Garrison, 36 W. Va. 686, 688. Such an offense is indictable unless the statute points out some particular method or mode of punishment or redress, and which is exclusive of other remedies. 2 Hawkins Pleas of the Crown, (8th ed.), 289. As some of the authorities express it: "If a statute enjoin an act to be done an indictment will lie for disobeying the injunction of the legislature." Keller...