State v. Wolfe

• Decision Date: 28 October 1930
• Docket Number: No. 6762.,6762.
• Citation: 156 S.E. 56
• Parties: STATE. v. WOLFE.
• Court: West Virginia Supreme Court

156 S.E. 56

STATE.

v.WOLFE.

No. 6762.

Supreme Court of Appeals of West Virginia.

Oct. 28, 1930.

Rehearing DeDied Dec. 2, 1930.

Syllabus by the Court.

"A party who is surprised by unfavorable testimony given by his own witness may interrogate such witness as to previous inconsistent statements made by him." State v. Swiger, 105 W. Va. 358, 143 S. E. 85.

Error to Circuit Court, Mason County.

John Wolfe was convicted of possessing and operating a moonshine still, and he brings error.

Affirmed.

B. H. Blagg and F. G. Musgrave, both of Point Pleasant, for plaintiff in error.

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

LIVELY, P.

John Wolfe and James Bright were jointly indicted for possessing and operating a moonshine still. John Wolfe, found guilty of the charge and sentenced to two years' imprisonment in the penitentiary, obtained this writ of error.

In December, 1929, the sheriff of Mason county, together with the chief of police of Point Pleasant and members of the state police department, upon information that there was a moonshine still in the vicinity, conducted an unsuccessful search of defendant Wolfe's home and barn. A few minutes after the search, Wolfe, his son, Bright, and several members of the Meyers' family (neighborsof Wolfe) passed the barn in a Bsby Overland automobile, going in the direction of Wolfe's home. Wolfe saw the officers on his premises, but did not stop to ascertain their business. Recognizing Wolfe, the officers started after the machine which stopped in front of Wolfe's home long enough for defendant Wolfe's wife to hand him a package (which, according to Mrs. Wolfe, contained books for Mrs. Meyers). The automobile then went a few feet further and became stuck in the mud. When the occupants of the car perceived the officers following them, Bright and Wolfe's son (fifteen years of age) left the car and ran, the boy stating he became fearful when he saw the officers' guns. Bright was apprehended a short distance from the car, and near by a pint bottle, containing an odor of moonshine liquor, was found. An odor of "mash" was evident about the occupants of the car. According to defendant's testimony, Wolfe was taking the Meyers family to the main road where an automobile too heavy for use on the road which passed Wolfe's home because of the condition of the road would take them to Ohio, the home of the Meyers family; but no baggage was seen in the car. As the officers had approached the home of Wolfe, a boy was seen to run from the house, up the creek, and in the direction from which the car came. After Wolfe and Bright were arrested, several of the officers went in that same direction to see if any liquor or moonshine stills could be located. They found the tracks of the auto in the grass along the road in front of the Meyers house; from the point where the auto tracks ended, they followed footprints leading up the hollow, and then through a cornfield, about one-quarter of a mile from Wolfe's home, where they found the moonshine still, exhibited at the trial, in operation and mash barrels.

Defendants denied ownership or knowledge of the still. Two witnesses had seen John Wolfe (known as "Buff" Wolfe) on November 25, 11)29, at Frank Allen's place of business in Point Pleasant; and Allen, introduced as a witness for the state, testified that on that day Wolfe had asked him to go "out to his place and solder a copper can"; that he (A1len) had gone to a place about one-fourth mile above Wolfe's home, where he put a bottom in the copper can, and that the can, exhibited at the trial, appeared to be the one repaired by him, the work being paid for by two men "who said they was 'Buff' Wolfe and Jim Bright"; but denied that the defendant Wolfe was the person who had hired him to solder the can or who had paid him, although he did admit, reluctantly, that Wolfe had talked with him twice since the arrest. Upon Allen's failure to identify defendant as the "Buff" Wolfe who had hired and paid him to solder the can, the state evinced surprise, and offered, as evidence to discredit the witness, testimony given by the witness before the grand jury at the time the defendants were indicted. It is the introduction of this testimony which defendant's counsel aver was erroneous, since,-as counsel contends, the evidence is not contradictory of the testimony given by the witness Allen at the trial. That contention necessitates an examination of Allen's testimony. Allen had known Wolfe for 22 years. Before the grand jury, Allen testified that there were four men present when he repaired the copper can, that those present with whom he was acquainted and knew were Jim Bright and "Buff" Wolfe, and that "Buff" Wolfe paid him for the work, some of the money having been obtained from Bright It is argued that none of the evidence given to the grand jurors identified the defendants. There was nothing equivocal about the testimony; Allen was talking about a man he had known for 22 years. What better identification could he want than an acquaintance of such duration? But, upon examination at the trial, he denied that the defendant Wolfe was the man who had hired and paid him to solder the.copper can; and, to explain this enigma, he...