State ex rel. Cogar v. Kidd

• Decision Date: 24 May 1977
• Docket Number: No. 13851,13851
• Parties: STATE ex rel. Virgil COGAR v. Honorable William M. KIDD, Judge, Circuit Court, Webster County.
• Court: West Virginia Supreme Court

Page 899

234 S.E.2d 899

160 W.Va. 371

STATE ex rel. Virgil COGAR v. Honorable William M. KIDD, Judge, Circuit Court, Webster County.

No. 13851.

Supreme Court of Appeals of West Virginia.

May 24, 1977.

Syllabus by the Court

1. The first presumption contained in W. Va. Code, 61-3-20, which creates a presumption of guilt if an officer, agent or servant does not pay over or account for property within thirty days after proper demand has been made therefor, is unconstitutional as it destroys the constitutional presumption of innocence and constitutional right to remain silent guaranteed in Sections 5 and 10 of Article III of the West Virginia Constitution.

2. The second presumption contained in W. Va. Code, 61-3-20, relating to the creation of prima facie evidence of appropriation by the failure to account or pay over property, is unconstitutional as it relieves the State of proving beyond a reasonable doubt a material element of the crime of embezzlement by a public official, thereby violating the due process guarantee contained in Article III, Section 10 of the West Virginia Constitution.

3. Even though the two presumptions contained in W. Va. Code, 61-3-20, are found to be unconstitutional, this does not render the entire statute unconstitutional since what remains is capable of standing independent of the rejected portion.

4. Although the right of the Legislature to create and define crimes and to regulate their prosecution is extremely broad, that right is subject to constitutional limitations.

5. W. Va. Code, 62-2-5, relating to the prosecution of distinct acts of embezzlement in the same indictment, is not unconstitutional as violating the defendant's right to due process under Article III, Section 10 of the West Virginia Constitution.

6. W. Va. Code, 62-2-5, relating to the prosecution of distinct acts of embezzlement in the same indictment, is not applicable where individual acts of embezzlement are accomplished in accordance with a common scheme and common criminal intent.

7. Where the State elects to cumulate separate acts of embezzlement in one indictment on the theory they were committed pursuant to a common design and common criminal intent, it must prove such common design and common criminal intent, and the question of whether the cumulative act is grand or petit larceny by embezzlement may depend on the proof and would be determined by the jury upon proper instructions.

Dan O. Callaghan, Richwood, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

This is an original action in prohibition brought by a defendant under indictment for embezzlement to test the constitutionality of the embezzlement statute, W.Va.Code, 61-3-20. Petitioner's principal claim is the statute creates an impermissible presumption of guilt, violating his rights under Article III, Sections 5 and 10 of the West Virginia Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. We agree, but hold that the entire embezzlement statute is not thereby rendered unconstitutional.

The theory urged by the petitioner is the same as that discussed recently by this Court in Pinkerton v. Farr, W.Va., 220 S.E.2d 682 (1975). There, W.Va.Code, 61-6-7, commonly known as the Red Men's Act, was declared unconstitutional because it contained a presumption of guilt of the charge of conspiracy on proof that the defendant was present, aiding and abetting the commission of the crime. The presumption was held to be unconstitutional in that:

"(1) (I)t infringes upon an accused's right against self-incrimination; (2) it destroys the presumption of innocence to which an accused is entitled; and, (3) it has evidentiary effect which permits conviction by presumption rather than by proof beyond a reasonable doubt." (220 S.E.2d at 685)

We find the reasoning of Pinkerton compelling and applicable also to the presumptions contained in W.Va.Code, 61-3-20.

Two unconstitutional presumptions are contained in the statute. The reason there are two presumptions is that the embezzlement statute contains two separate embezzlement offenses. Both presumptions were added to the embezzlement statute by Chapter 18 of the 1903 Acts of the Legislature, when the statute was substantially amended and a new substantive crime, relating solely to embezzlement by public officials, was added. This offense is currently found in the first sentence of the second paragraph of W.Va.Code, 61-3-20. ¹

The first presumption, in the last sentence of the first paragraph, gives rise to a presumption of guilt where the property is not returned by the defendant within thirty days after a demand is made on him for its return. ² The second, in the last sentence of the second paragraph, makes the failure to account for or to pay over the property, prima facie evidence of the defendant's guilt. ³

The first presumption bears directly on the defendant's guilt. This is the ultimate issue that a jury must decide. While this presumption contains language permitting the defendant to rebut its effect, it operates to shift the burden of proving innocence to the defendant. The State cannot by a statutory presumption of guilt remove the defendant's constitutional presumption of innocence and the constitutional right to remain silent. Pinkerton v. Farr, supra; State v. Boyd, W.Va., 233 S.E.2d 710 (1977).

The second presumption, which relates to the crime of embezzlement by a public official, is not as broad as the first presumption. It creates a presumption of prima facie evidence of appropriation by the defendant's failure to account or pay over. Appropriation is one of the essential elements of this crime. ⁴

This Court in State v. Pendry, W.Va., 227 S.E.2d 210 (1976), held that the State must prove every element of a crime beyond a reasonable doubt and is not entitled by way of a presumption or inference to avoid the proof of an element beyond a reasonable doubt. Pendry impliedly rejected the "rational connection" test, which is a means of upholding a presumption and which was discussed at some length in Pinkerton v. Farr, supra. In Pendry, the presumption occurred by virtue of instructions offered by the State. Here the presumptions are embedded in the statute defining the crime and thus are reachable by a writ of prohibition. Compare Pinkerton v. Farr, supra, with State ex rel. Peacher v. Sencindiver, W.Va., 233 S.E.2d 425 (1977).

Although W.Va.Code, 61-3-20, contains unconstitutional presumptions, this does not render the entire statute unconstitutional. Each offense is distinct and severable from its respective presumption. Where portions of a statute are found to be unconstitutional, the entire statute will not be declared invalid if what remains is capable of standing independent of the rejected portion. State v. Flinn, W.Va., 208 S.E.2d 538, 549 (1974); State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952).

We therefore conclude that the presumptions contained in the embezzlement statute are unconstitutional; that the remaining portion of the statute is not thereby rendered unconstitutional; and that a criminal proceeding based upon the substantive crime of embezzlement is not impeded by striking out the unconstitutional presumptions. The effect of our ruling is that the State may not rely upon the unconstitutional presumptions contained in W.Va.Code, 61-3-20, in any prosecution.

Petitioner also questions the constitutionality of W.Va.Code, 62-2-5, claiming that it violates his due process rights. ⁵ Alternatively, he argues that even if constitutional, his indictment based thereon is void because it does not comply with the statute, in that it consists of a single count of embezzlement containing 130 separate dates and amounts alleged to have been embezzled. The dates extend from July 1, 1974, through December 24, 1975, and the amounts range from $1.21 to $130.00.

Petitioner predicates his due process argument on the assertion that the statute is fundamentally unfair as it enables an indictment to be drawn for embezzlement charging "any number of distinct acts of such embezzlement." Pinkerton v. Farr, supra, is cited generally for the proposition that "due process" is ultimately measured by the concept of fundamental fairness.

Although the right of the Legislature to create and define crimes and to regulate their prosecution is extremely broad, that right is subject to constitutional limitations. The Legislature is required to define a criminal offense with some particularity. Otherwise, it may be unconstitutionally vague. West Virginia Constitution, Article III, Section 4; State v. Flinn, supra. It cannot create presumptions which contravene a defendant's constitutional right to the presumption of innocence or the right to remain silent. West Virginia Constitution, Article III, Sections 5 and 10; Pinkerton v. Farr, supra. It may not impose a punishment which is cruel and unusual, and penalties must be proportioned to the character and degree of the offense. West Virginia Constitution, Article III, Section 5; State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965).

The validity of any indictment is tested in the first instance by the requirement that it plainly inform the defendant of the character and cause of the accusation. ⁶ West Virginia Constitution, Article III, Section 14; State v. LaManca, 142 W.Va. 549, 96 S.E.2d 667 (1975); State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965), cert. denied, 382 U.S. 940, 86 S.Ct. 392, 15 L.Ed.2d 350 (1965); Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964).

We see nothing on the face of W.Va.Code, 62-2-5, that compels us to declare it unconstitutional. It contains no unconstitutional penalties or presumptions. The statute does not conflict with the substantive crime of embezzlement to render it vague. It is procedural in nature and is...