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


mind that the defendant is not charged
with violation OF said section 81. He
is charged with violation OF section
3. Before he could be convicted on
the Indictment under which no was
tried, there would have to be full
proof Of his guilt. The evidence relied
upon to prove tho allegations OF the
indictment was the fact of the pos
session OF the liquors at the time and
place and under the circumstances
stated. or course, evidence OF the fact
of the possession OF the liquors. to-
gether with the question as to wheth-
err II was properly labeled, might so
to the jury rs a circumstance. In
connection with the other evidence In
the case. State v. Kfger. 6S West Viz
ginia, $50; but these facts alone would
not justify the court In instructing the
jury, as was done in substance In the
case at bar by instruction No. !, that
liquor in possession OF a person In
violation OF said esction 81. shall be
conclusive evidence OF the unlawful
keeping, storing and selling OF liquors
by the defendants having such liquors
in his possession
"Following this instruction, all the
state would have to prove. in addition
to proving the time and place upon
the trial OF an indictment charging q
person with unlawfuily keeping. stor-
ing or selling Intoxicating liquors
would be the possession OF the liquor
in tho quantities named and that they
were not marked or labeled as re-
quired by this act. The possession
of the liquors in quantities or more
than one-half Of one gallon not labeled
as required by this. act by the de-
PENDANT at the time and place alleged
in the Indictment, would have to be
accepted by the jury as
Conclusive Evidence
OF the keeping. storing and selling.
There is no such relation between the
act Of having the liquors In possess
sion under these circumstances, and
the act OF pnlawfully keeping, storing
and selling the same. as would make
such possession conclusive evidence
OF keeping. storing or selling, This
would be to make one act proof OF the
act for which the defendant was being
tried, without permitting him to prove
that he did not commit the unlawful
act charged. Under such circum-
stances, person might be convicted
without due process Of law. II has
been truly said. that closing the
mouth ola person when he comes into
court has the same effect as depriying
him Of his day In court to yindicate
his rights We are clearly OF opinion
that SO much Of said section 81 as re-
lates to liquors In the possession or
any person violating this section, ana
providing that the liquor in possession
OF such person shall be conclusive
evidence OF the unlawful keeping. stor-
ing and selling of the same. by the
person having such liquors In his pos
session. is unconstitutional and void.
..But this clause Is not SO connected
with the other parts OF the section as
TO make the other parts imperative.
Part of an act may be imperative
and void, and part OF 1t operative, but
this can only be when the parts are
Aot Connected Eckhart v. the state,
. West virginia, oie. lnousn one a'
provision OF 2 statute Is repusn s,la 70 =.
in operation from the balance, that
provision will be ignored. and the baf-
ance stand good. State ". King. 81
West virginia, Pay, ~ wn M. tne
unconstilnuonn, Igrlion
Is stricken out tnat whicn remains =
complete 10 user. anu capable OF pe-
ing executed IN accoraance WIN tne
apparent iegisiatiye ln,ent, wnoily m
dependent OF tnat wnich was relected,
u must be sustained. cooley on con,
s : limitation sseyentn eoit'oh)