State v. Zink
| Decision Date | 03 March 1925 |
| Docket Number | 5105. |
| Citation | 128 S.E. 114,98 W.Va. 340 |
| Parties | STATE v. ZINK. |
| Court | West Virginia Supreme Court |
Submitted February 24, 1925.
Rehearing Denied June 10, 1925.
Syllabus by the Court.
Under section 37, chapter 32A, Code, the provision that the finding of any quantity of intoxicating liquor in the possession of any person other than commercial whiskies which were obtained and stored in homes for domestic use at a time when it was lawful so to do shall be prima facie evidence that the same is "moonshine liquor" casts the burden of proving the contrary upon the person in whose possession said liquor is found.
Where the court gives instructions fully covering the law applicable to the facts shown in evidence, it is not error to refuse other instructions which are similar in substance to the ones given.
A verdict of guilty, returned by a jury in a criminal case consistent with the only reasonable interpretation which can be placed upon the evidence and circumstances proven, will not be set aside by this court.
While the court, on request, should give an instruction calling attention to the necessity of the unanimity of the jury verdict, in a case where such instruction is embodied in another giving a wholly different definition of "reasonable doubt," not of common judicial acceptation, from said term as defined in another instruction, of common judicial acceptation, it is not error for which the case will be reversed to refuse such instruction as a whole.
Error to Circuit Court, Marshall County.
John Zink was convicted of possession of moonshine liquor, and he brings error. Affirmed.
Everett F. Moore and Martin Brown, both of Moundsville, for plaintiff in error.
E. T England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen for the State.
The defendant, John Zink, prosecutes this writ of error to a judgment of the circuit court of Marshall county entered on the 25th day of September, 1923, sentencing him to confinement in jail for 60 days and to the payment of $100 fine and costs. The indictment charges him with having had in his possession a quantity of "moonshine" liquor upon which charge a jury found him guilty.
F. M. Howard, deputy sheriff of Marshall county, H. G. Smith, and U.S. Crawford of the state police, and A. R. McMurry of the Moundsville police force, under authority of an arrest, search, and seizure warrant issued by a justice of the peace, set out on the 15th day of November, 1922, to search for intoxicating liquors in "that certain two story frame house known as No. 1113 Lafayette avenue, in the city of Moundsville," and to apprehend and arrest one John Zink. The search was made, certain liquors found under the floor of the Zink home were seized, and John Zink arrested. He was later indicted at the January, 1923, term of the Marshall county circuit court, as above stated. At the trial the testimony of the state was in substance as follows: The four officers mentioned above went to the house aforesaid. This house was a double house; John Zink and family living in the northern half thereof. Howard and McMurry went to the rear of the house to explore. Howard crawled through a small opening up under Zink's kitchen, but found no access up under that portion of the floor of Zink's residence where the "moonshine" was later discovered. Howard and McMurray then went around to the upper side of the house, and they, together with the state police, noticed a small opening in the foundation wall on the upper side right "fornenth" the chimney where a couple of bricks were out. On looking through this opening they saw under the floor about half of a can of something supposed to be beets or cherries. They then looked in through the window of the central room of the Zink home and located the position on the floor over this supposed fruit. Howard sent for a pick. All four of the officers went inside, and with a little effort by use of the pick they opened a trap door next to the hearth and wall, and under the floor, to use the language of the officer, "there set eight gallons of moonshine." The return on the warrant shows that they found "eight gallons 'moonshine' liquor, five empty one-gallon glass jugs, one empty one-gallon tin jug, five empty one-gallon tin cans, one lot empty containers of various sorts." Five gallons of the "moonshine" was in the tin container, which was exhibited in evidence at the trial, and inspected by the jury, and the other three gallons were in three separate one-gallon glass jugs. The witnesses for the state testified that it was moonshine liquor. Mrs. John Zink and daughter, Della, testified on behalf of the defendant that they had lived in that same house for three years; that they never knew of the trap door; and that they knew nothing of the liquor being stored there. The defendant did not go on the stand.
The first point of error is that the court erred in giving, on its own motion an instruction defining "moonshine" liquor. This instruction is identical with one approved in State v. Walker, 94 W.Va. at page 696, 120 S.E. 171. The instruction in the latter case, however, went farther than the court in the instant case, in this, that it held that the burden of proving that intoxicating liquors, other than commercial whiskies which were obtained and stored in homes for domestic use, found in possession of any person, is not "moonshine" liquor is upon the defendant. But the court in the present case at the conclusion of the instruction added another clause defining intoxicating liquors according to section 1, of chapter 32A, Barnes' Code. While this was not warranted, the fact that no proof was offered by defendant to the effect that the liquor found in the Zink home was not "moonshine" makes it harmless...
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