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

Enbfiau fanBunke, Dut not III
~ Large Display Letters,
the words and figures, a OTIS. whiskey
. OTIS. rum, 4 pts. beer then they must
find the defendant guilty as charged
in the Indictment is erroneous.
80. An instruction. as applied to
the facts in this case. which tells the
jury that If they believe from the evil
dence that said written statement
truthfully and correctly stated the
contents OF said basket and the guam
tity and kind OF liquors contained
therein, and that said statement was
in large display letters. still the pos
session OF said quantity Of whiskey
by the defendant at, the time the same
was seized, in said county. is prima
facie evidence that the defendant at
the time aforesaid. in the county afore-
said. did unlawfully sell, store and
keep intoxicating liquors, and then
the burden OF proof is upon the de-
PENDANT in this case to overcome such
prima facie case.' Is erroneous.
40. The opinion Of witnesses
should never be received in evidence
IL all the facts can be ascertained and
made ineligible to the jury, or II
they are such as men in general are
capable OF comprehending and under
standing. The general rule is that
Witnesses must testify to facts. and
not to opinions. Ssfs -=t ~
a. An exception taken upon the
trial. to the refusal Of the court to
permit question propounded to a
witness to be answered, will not be
considered by the appellate court I'M
less the sfAa a. Ieis 429y~
Expected Answer
was disclosed to the court at the time
OF the ruling, The appellate court in
reviewing the Judgment on writ OF
error, cannot assume in such case that
an answer favorable to the exceptor
would have been given. ~ -
Mason, Judge:
AT the. April term 1915, of the cir
cult court OF Monongalia county, An
.dy Sixoi was indicted, charged with
unlawful1y manufacturing selling, of
fering,s keeping. storing and exposing
for sale and soliciting and receiving
orders for liquors, and absiithe and
drink compounded with absinthe, in
violation of section 3. chapter 10,
acts Of the legislature Of 1918. He
appeared and moved TO quash the in
dictment, which motion was over
ruled. The Indictment is in the form
prescribed by the said act, section 8.
THE defendant then moved the
court to require the prosecuting attor-
ney to file bill OF particulars, which
motion was overruled. The defend
ant pleaded not guilty, and the issue
was thereon Joined. The case was
submitted to jury, and verdict Of
guilty returned. The defendant moved
the court to set aside the verdict ana
grant him anew trial. The court re-
fused to set aside the verdict, and en-
tered judgment against the defend
ant. To the order Of the court in re-
fusing to set aside the verdict and
grant q new trial, and entering judg-
ment, the defendant excepted. The
evidence is certified by bill OF ex-
ception No. 1. The defendant also
complains Of two instructions given
the jury by the court, on behalf Of the
state, over. his objection. These In
structions are made part OF the record
by bill, Of exception No. 2. The de-
PENDANT
Further Complains
that the, court erred in admitting GER
tain evidence at the instance OF the
state, and In refusing to admit other
evidence at the instance of the de-
PENDANT, certified in bill Of exceptions
No. 8.
THE facts as they appear from the
record are. that on the first day OF
April. 1915, the defendant was at the
Baltimore and Ohio Railroad Com
pany's depot at Morgantown, in Mo-
mongolia county. and had in his pos
session "a split basket with two bot
ties OF whiskey, quarters, two quarts
of rum and four pints of beer. He
had q label. pasted. on the side of the
basket In writing. The basket was
covered with paper. but the bottles
in the basket could be seen through
this covering, 1t is agreed by the
counsel that the label on. the. basket
reads 4 at. whiskey 2 at. rum at.
beer. For personal use.' The size OF
the labelson the basket, as testified by
witnesses for the state is six inches
by two and three quarters inches;
the height OF the highest letter three
fourths inch, the lowest and smallest
letter Is one-eighth inch. This meas
urement was made BY witness in the