State v. Koski

133 S.E. 79, 101 W. Va. 477, 1926 W. Va. LEXIS 204

• Court: West Virginia Supreme Court
• Decided: April 27, 1926
• Docket: No. 5265.
• Status: Published

Opinion

Woods, Judge:

Upon an indictment charging him with selling liquor, defendant was convicted and sentenced to serve six months in jail and to pay a fine of $500.00.

Glen Coe testified that he went to the Koski house, in Moundsville, Marshall county; was admitted; asked for a pop bottle full of liquor; received the same from hands of defendant Joe Koski; and paid him one dollar for the same. H. G. Smith, a prohibition officer, testified that he searched witness Coe before he started out to make the said purchase; that he watched him enter the Koski house and saw him come out; that the liquor introduced in evidence as a part of Coe’s testimony was found on Coe’s person after he came out of the house. The defendant denies making the sale.

The several assignments of error set out in defendant’s petition will be considered in their order.

It is contended that the court erred in leaving Lester Mc-Swain on the panel of twenty jurors, since he had been a member of the jury which had rendered a verdict of guilty in a similar case against defendant’s brother, on a former day of said term of court. McSwain, on his voir dire, testified that he did not know defendant; had formed or expressed no opinion as to his guilt or innocence; was conscious of no bias or prejudice for or against him; and that he could' give defendant a fair and impartial trial, and return a verdict according to the law and the evidence. A juror is not disqualified by reason of having served on a jury at the same term of court in the trial of a case for a similar offense. McSwain satisfied the presiding judge of his fairness and impartiality to serve as a juror, and was properly left on the panel. State v. Richards, 101 W. Va. 186; State v. Larue, 98 W. Va. 667; State v. Porter, 98 W. Va. 390; State v. Toney, 98 W. Va. 236.

The indictment in the instant case was drawn under the statute, and charged that defendant on the . day of October, 1923, “did unlawfully sell, offer, keep, store, and expose for sale, and solicit and receive orders for liquors and absinthe, and drinks compounded with- absinthe. ’ ’ The State, on motion of the defendant, filed a bill of particulars indicating that she would “attempt to prove sales of intoxicating liquors”. And defendant assigns the court’s refusal to require the State to “specify the time, place and to whom the sale was made” as error. The indictment, read in connection with the bill of particulars, furnishes the date of the offense and the place of sale. Only one sale of intoxicating liquors was attempted to be shown in évidenee by the State, and this conformed to the time and place alleged in the indictment. All of the requisites of a bill of particulars were furnished. It is within the discretion of the court as to whether the bill is sufficient, or whether in fact one be required. State v. Counts, 90 W. Va. 338; Hale v. Commonwealth, 132 Va. 678; Barker v. Commonwealth, 133 Va. 633; Fitzpatrick v. Commonwealth, 135 Va. 504.

The court gave but three instructions for the State. One relating to the unanimity of the verdict — approved in State v. Edgell, 94 W. Va. 198. The other two told the jury, in effect that they were the sole judges of the weight of the testimony — instructions that have time and again had the stamp of approval of this Court.

The defendant asked for fifteen instructions, and the court gave all but five. The instructions refused were where other instructions already given fully and sufficiently covered the principles of law laid down in the rejected instructions. They were properly refused. State v. Cook, 94 W. Va. 166; State v. Wriston, 93 W. Va. 568; State v. Laura, 93 W. Va. 250; State v. Price, 92 W. Va. 542. So it would seem that the jury was fully and correctly advised upon the law governing the case. The evidence of the defendant’s guilt was convincing.

Perceiving no material error in the case, the judgment of the lower court is affirmed.

Affirmed.