The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1915-12-26


the indictment. In giving this instruc-
ton the court
Evidently Overlooked
the fact that the defendant was being
tried for a violation OF section 3. not
section 31--two quite different Of
fonses, II rs not perceived how such
violation Of this provision Of section
81 would make II obligatory on the
jury to find the defendant guilty OF a
violation OF section 3. This is no such.
connection between the two PROPOSE
tions Us would Justify this conclusion.
-(b). In the second paragraph or
this instruction the court tells the
jury that IL they further believe that
said written statement truthfully and
correctly stated the contents OF said
basket aud the quantity and kind Of
liquors contained therein, and that
said statement was In large display
letters. still the possession OF said
quantity OF whiskey by the defendant.
ut the time. the same was seized, in
said county, Is prinia facie evidence
that the defendant at the time afore-
said. In the county aforesaid. did I'M
lawfully sell. store and keep intoxi.
eating liquors, and then the burden OF
proof is upon the defendant In this
case Under this instruction, II he de-
case Under this instruction, II he de-
PENDANT was found carrying this liquor,
properly labeled and marked. In COM
plinnce with the law, the mere pos
session under such circumstances. "a
prima facie evidence that he did I'M
lawfully sell. store and keep intoxicat-
Ing liquors. and the burden OF proof
is on the defendant TO overcome such
prima facie case.
Section OF chapter 10. as amended
by the acts OF 1915. says: provided.
however. that nothing contained In
this section shall prevent one, In his
home, from having there and giving
to another Intoxicating liquors when
such having or giving is In no way 4
shift, scheme or device TO eyade the
provisions OF this act: but the word
home as used herein. shall not be
construed to be ones club. place Of
common resort, or room OF tran.
silent guest in hotel or boarding
house. Under this proviso, a person
may lawfully have intoxicating liquors
in his home for personal use, subject
to the restrictions named. But II this
instruction properly propounds the
law, a person who.iB found in posses
sion OF u package containing
Intoxicating Liquors,
although properly labeled and marked,
would be prima facie guilty of selling,
storing and keeping intoxicating liq-
uors In violation OF the law. II will
not do TO say that q person shall be
prima facie guilty OF an offense for
doing what he has the lawful right TO
do. Any one has the right to keep In
tcxicating liquors In his home for per-
sonal use; and having the right to
keep them, he must have the right TO
take them there, under reasonable reg
ulation; and n the state has reason
to. believe that such liquors are being
kept as shift. scheme or device to
evade the provisions OF this act, the
burden In the first instance is on the
state, by some proper evidence, to
show this. We are of opinion that
the court erred In giving both OF these
instructions.
There is no error in refusing to
require the state to file a bill OF par
ticulars. The Indictment is sufficient
TO inform the defendant fully and
plainly of the character and cause
of the accusation Fit did not give
this information, a motion to quash
should be sustained. II for any rea-
son the defendant had deemed II nee
essary to DO more fully informed of
the character and cause OF the accusa-
tion against him. his motion should
have been made before pleading and
supported by affidavit showing the me-
cessity for such additional informa-
tion. No such affidavit was fled;
hence 1t was not error to refuse to re-
quire the prosecuting attorney to file
Bill Of Particulars.
II such affidavit had been filed In time,
and It had appeared that IL was neces-
sary for the defendant to have the in
formation asked for. and II was re-
fused, this would be reversible error
State v. Railroad Company. 6S West
Virginia, 1893: State v. Lewis, 50 West
Virginia, 472.
ut is contended by plaintiff in err
ror that the court erred In admitting
evidence over the objection OF the de-
PENDANT, and he refers to the follow
ing question asked witness Z. E.
White: referring to the piece OF pa
per pasted on the outside Of the bas-
ket, you may state whether or not, In
your. opinion the words and figures APP
pearlng thereon are printed or written
in large display letters In the. Eng
lish language? The defendant by
counsel objected TO this question. The