DocketNumber: No. 9304
Citation Numbers: 20 S.E.2d 906, 124 W. Va. 344
Judges: ROSE, JUDGE:
Filed Date: 5/12/1942
Status: Precedential
Modified Date: 1/13/2023
Elbert Allen Rigsby prosecutes this writ of error to the action of the Circuit Court of Cabell County in affirming the judgment of the Court of Common Pleas of that County, by which he was sentenced to the penitentiary for a term of from one to three years upon a second conviction for unlawful transportation of alcoholic liquors in violation of Code,
The indictment consists of four paragraphs. The first two charge adequately the violation of Code,
The demurrer was based upon the theory that the first two paragraphs must stand alone and that they charge a misdemeanor only, not a felony; and that the last two paragraphs must be treated as a separate and distinct count, which do not allege any punishable crime.
The third and four paragraphs are not a "count" in *Page 346
any proper sense of the word, notwithstanding they are so called in the indictment. Their character is not determined by what they are called, but by their actual substance. This so-called "second count" does not in any sense make a charge upon which the defendant can be made to stand trial. It does not pretend so to do. It does not allege that he, in fact, did the act described therein, but only that he was "convicted and sentenced" therefor. These paragraphs further show on their face complete facts which constitute a perfect defense on the grounds of former jeopardy and of autrefois convict. If the indictment contained these paragraphs alone, it would be simply a nullity. But they do serve to show the character of the defendant with whom we are dealing; they place him in a class as to whom the offense charged in the first two paragraphs is a felony. State v. Mullenax,
The search warrant was issued upon complaint, duly verified, of O. R. Ruth, an enforcement officer of the West Virginia Liquor Control Commission. It authorized the search of "that particular 1940 Model Ford V-8 Coupe, Painted Black, bearing Kentucky License 68-456." The complaint alleged that the affiant "has cause to believe" and "does believe that alcoholic liquors, as defined by the West Virginia Liquor Control Act, are being transported, sold, kept, stored, held, used and concealed in the county aforesaid" in the automobile above described, and "that the facts for such belief are that the affiant knowing the said Elbert Rigsby to be a bootlegger and having received information that the said Elbert Rigsby would deliver whisky to 840 1/2 4th Avenue in the above said automobile." The only criticism of this affidavit is that it does not set up sufficient "facts" to justify the *Page 347
belief pretended by the officer. Code,
The state further insists that the search of the car in question was lawfully made after the arrest of the defendant's companion, Cassel, as for an offense committed in the presence of the arresting officers. Ruth and Folio were agents of the Liquor Control Commission. Their power to arrest without warrant is created by section 24, article 3, chapter 40 of the Acts of 1939, in the following words:
"Members of the commission are hereby vested, and such officers, agents and employees of the commission as shall be designated by the commission shall, upon being so designated, be vested, with like power and authority to enforce the provisions of this chapter and the criminal laws of the state relating thereto as are vested in sheriffs of counties and members of the department of public safety."
Members of the department of public safety are authorized "To make arrests anywhere within the confines of the State of any and all persons charged with the violation of any law of this State, or of the United States, and when a witness to the perpetration of any offense or *Page 349
crime, or to the violation of any law of this State, or of the United States, may arrest without warrant; * * *." Code,
These two officers testified that after obtaining the search warrant at one o'clock at night, they placed themselves, about three o'clock, in concealment near the house where the liquor was expected to be delivered; that near seven o'clock in the morning, as day was breaking, the defendant, Rigsby, arrived in the alley near the house in question, driving the car mentioned in the search warrant; that a man named Cassel, who was in the car with Rigsby, alighted therefrom and was in the act of "unloading whiskey" or "getting ready to get a package of this whiskey" from the car when the officer Ruth disclosed himself; that the defendant instantly attempted to back the car out of the alley, but was "hemmed in" by the car of the officers, driven by Folio; that the car driven by the defendant knocked down Cassel, who was rendered partially unconscious, and crashed against the wall of a building; that the defendant fled, making good his escape, and Cassel was immediately arrested, the car searched and 90 pints of whiskey found therein, on the ledge on top of the back of the seat.
We are of opinion that what these officers saw and what they otherwise knew was sufficient to justify the arrest of Cassel. "An offense can be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of a series of acts constituting the offense, and is aided by his other senses or by information as to the others, when it may be said the offense was committed in his presence."State v. Lutz,
Cassel, therefore, must be considered to have been legally arrested, even if it were held that the officers did not possess a legal search warrant. And his arrest authorized the seizure of the whiskey in the car in which he had just arrived and from which he was attempting to take the liquor. "The instruments, devices and materials used in the commission of a crime are competent and legitimate evidence on the trial of the accused, and the taking of them from the premises of the accused where he is arrested by an officer making the arrest on a lawful warrant, is not illegal search and seizure."State v. Rudy,
It follows that the judgment complained of will be affirmed.
Affirmed.
King v. United States , 1 F.2d 931 ( 1924 )
Pickett, Pros. Atty. v. Marcucci's Liquors , 112 Conn. 169 ( 1930 )
Agnello v. United States , 46 S. Ct. 4 ( 1925 )
Thomas v. State , 196 Ind. 234 ( 1925 )
State v. Lacy , 118 W. Va. 343 ( 1937 )
State v. Rudy , 98 W. Va. 444 ( 1925 )
State v. Olivetti , 107 W. Va. 357 ( 1929 )
State v. Tatar , 108 W. Va. 709 ( 1930 )
State v. Koil , 103 W. Va. 19 ( 1927 )