Opinion
No. 5105.
Submitted February 24, 1925.
Decided March 3, 1925.
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, for plaintiff in error.
E. T. England, Attorney General, and R. Dennis Steed, Assistant Attorney General, 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 sixty days and to the payment of $100.00 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 McMurry 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 a position on the floor over the 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 "8 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 gallon 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. 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 32-A, 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 error, if error it be. However, if this latter clause be read in the light of the rule of evidence as to what is "moonshine" liquor, as defined in section 37, of the same chapter, and as embodied in the first clause of the Court's instruction, and subject to the qualification therein, it would not be open to criticism. The able counsel in their brief, make the point that the instruction under consideration was not submitted to counsel for their examination before it was given. This is under authority of State v. Noble, 96 W. Va. 432, 123 S.E. 237; and State v. Warrick, 96 W. Va. 722, 123 S.E. 799. The record fails to show affirmatively that such instruction was not so presented to counsel for consideration. In view of the silence of the record as to the performance of duties incumbent upon the court in the trial of criminal as well as civil cases, due performance thereof is presumed. State v. Beatty, 51 W. Va. 232; State v. Lavin, 64 W. Va. 26. It appears, however, from the record, that the instruction given by the Court in this case was prompted by a controversy between counsel in the argument of the case over the meaning of the term "moonshine" liquor, and the Judge informed counsel from the bench that at the conclusion thereof he would give to the jury the instruction. This amounted to nothing more than a ruling on the point already requested by the defendant's counsel, and will be so considered by this Court.
Another ground of error urged is the refusal of an instruction combining a definition of "reasonable doubt" with the provision that if any juror in the case has such doubt, after hearing the evidence, receiving instructions of the court, and listening to arguments of counsel, he should not agree to a conviction. Instruction No. 4, for the defendant, defining "reasonable doubt" had already been given to the jury. To have given the instruction, the refusal of which is complained of here, would have been to give a wholly different definition of reasonable doubt, and not of common acceptation, coupled with the direction that if any single juror was opposed by such a doubt as defined therein that it was his duty to stand for acquittal. Instructions attempting to define reasonable doubt are generally condemned by text writers on evidence. 4 Wigmore on Ev., Sec. 2497; Chamberlayne on Mod. Ev., Sec. 996-b and 1016. Any attempted definition of the term of such common use and self evident meaning as "reasonable doubt" is more apt to confuse rather than to enlighten a jury. State v. Worley, 82 W. Va. 350; State v. Snider, 81 W. Va. 522. Judge LIVELY aptly puts it in the following words in State v. Powers, 91 W. Va. 752: "Usually such instructions do not add to nor detract from the common interpretation of the phrase. The ordinary juror is capable of determining the meaning of the phrase 'reasonable doubt' without interpretation." The court held in the latter case that instructions attempting to define "reasonable doubt" should be discouraged. Had the instruction of the unanimity of the verdict been requested alone, it would have doubtless been given to the jury by the court, and it would have been error to have refused it. State v. McKinney, 88 W. Va. 401. The instruction on this point approved in the last mentioned case is preferable in form to the one asked in the instant case. To have given it in the setting requested would have been to confuse the jury by the multiple definitions of the term "reasonable doubt." It was not error to refuse to give it for this reason.
The last assignment of error is to the court's refusal to give defendant's instruction No. 13 in which the jury is told that it must appear beyond a reasonable doubt that the defendant and not some one else committed the offense charged in the indictment. This is substantially given to the jury instruction No. 11 which told the jury that if they entertained a reasonable doubt as to whether the defendant was identified from the evidence as the person who committed the offense charged, they must acquit the defendant. 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 mere repetitions of those given. State v. Wriston, 93 W. Va. 568; Kerr v. Lunsford, 31 W. Va. 659.
The court gave twelve instructions on behalf of the defendant. These instructions together with the two given for the state fairly presented the law applicable to the facts in the case.
The evidence plainly justifies the verdict. There is no reversible error in the record. Let the judgment be affirmed.
Affirmed.