State ex rel. Whitman v. Fox

• Decision Date: 15 July 1977
• Docket Number: Nos. 13951 and 13958,s. 13951 and 13958
• Citation: 160 W.Va. 633,236 S.E.2d 565
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Harold K. WHITMAN, Jack Hobbs, Vernon Dingess, and Anthony P. Cristiani v. The Honorable Fred L. FOX, II, Judge of the Circuit Court of Logan County, West Virginia. STATE of West Virginia ex rel. Roy STOLLINGS, Amos Godby and Betty Lunsford v. The Honorable Fred L. FOX, II, Judge of the Circuit Court of Logan County, West Virginia.

Page 565

236 S.E.2d 565

160 W.Va. 633

STATE of West Virginia ex rel. Harold K. WHITMAN, Jack

Hobbs, Vernon Dingess, and Anthony P. Cristiani v. The Honorable Fred L. FOX, II, Judge of the Circuit Court of

Logan County, West Virginia.

STATE of West Virginia ex rel. Roy STOLLINGS, Amos Godby and Betty Lunsford v. The Honorable Fred L. FOX, II, Judge of the Circuit Court of

Logan County, West Virginia.

Nos. 13951 and 13958.

Supreme Court of Appeals of West Virginia.

July 15, 1977.

Syllabus by the Court

1. That portion of W.Va.Code, 61-10-31 (1971) which makes conspiracy "to defraud the State, the state or any county board of education, or any county or municipality of the State" a crime violates W.Va.Const., art. 3, § 10, the due process clause, because it is vague, does not give a person of ordinary intelligence fair notice that his contemplated conduct is unlawful, and does not provide adequate standards for adjudication.

2. "Upon a joint indictment for a felony, any one of the persons jointly indicted may, under Code, 1931, 62-3-8, elect to be tried separately." Syllabus pt. 1, State ex rel. Zirk v. Muntzing, 146 W.Va. 349, 120 S.E.2d 260 (1961).

3. An indictment is legally sufficient when it adequately informs the accused of the nature of the charge pending against him and alleges every element of the offense the State intends to prove; an accused may discover facts and details concerning the State's case which are not required to be set forth in the indictment by properly applying for a bill of particulars, W.Va.Code, 62-1B-1 (1965).

4. Before a criminal defendant may challenge through a full hearing with compulsory process the system by which a grand jury was selected, he must first show facts which indicate that: (1) the group to which he belongs is a recognizable, distinct class, singled out for different treatment by custom, either legally or illegally; (2) the identifiable group is under-represented on grand juries as demonstrated by a comparison of the proportion of that group in the relevant population to the proportion called to serve as grand jurors, over a significant period of time; and (3) the selection procedure is susceptible to abuse or not neutral with respect to the identifiable group to which the accused belongs, as supported by statistical proof.

Grubb & Spaulding, Bernard L. Spaulding, Logan, for Stollings, et al.

Barrett, Chafin & Lowry, Lafe C. Chafin, Ray L. Hampton, II, Huntington, for Whitman, et al.

Chauncey H. Browning, Jr., Atty. Gen. and Sp. Pros. Atty., Willard A. Sullivan, Jr., Asst. Atty. Gen. and Asst. Sp. Pros. Atty., Paul R. Goode, Jr., Sp. Asst. Atty. Gen. and Asst. Sp. Pros. Atty., Mullins, John R. Fowler, Asst. Sp. Pros. Atty., Love, Wise, Robinson & Woodroe, Larry J. Gonzales, Charleston, for respondent.

NEELY, Justice:

These are two original proceedings in prohibition presenting important issues in the administration of the criminal law which the Court consolidated for argument and disposition because of identical questions of law.

On December 15, 1976 a special grand jury sitting in and for the Circuit Court of Logan County, West Virginia, returned a multiple count, joint indictment against Harold K. Whitman, Jack Hobbs, Vernon Dingess, and Anthony P. Cristiani, and another multiple count, joint indictment against Roy Stollings, Amos Godby and Betty Lunsford, both of which indictments charged violations of W.Va.Code, 61-10-31 (1971), W.Va.Code, 3-9-1 (1963), W.Va.Code, 3-9-9 (1963), W.Va.Code, 3-9-10 (1963), and W.Va.Code, 3-9-12 (1963). ¹ The Honorable H. Harvey Oakley, Judge of the Circuit Court of Logan County, disqualified himself from presiding over the Special Grand Jury called to investigate alleged election irregularities, and consequently, by order of this Court the Honorable Fred L. Fox, II, Judge of the Circuit Court of Marion County was temporarily assigned under W.Va.Const., art. 8, § 3, to the Logan County Circuit to hear all matters resulting from the Special Grand Jury investigations.

We granted a rule to show cause in prohibition to determine whether W.Va.Code, 61-10-31 (1971), the West Virginia conspiracy statute, is constitutional; whether the circuit court acted outside its jurisdiction in denying the petitioners' motion for severance and separate trials; whether the indictments alleging violations of W.Va.Code, 3-9-1 (1963) are sufficient as a matter of law; and, whether the Special Grand Jury of Logan County was constitutionally selected.

I

The first question before us is whether the initial felony count in the indictments alleging the violation of W.Va.Code, 61-10-31 (1971) can withstand challenge on the grounds that the statute under which it is drawn is unconstitutional. Code, 61-10-31 (1971) says:

It shall be unlawful for two or more persons to conspire (1) to commit any offense against the State or (2) to defraud the State, the state or any county board of education, or any county or municipality of the State, if, in either case, one or more of such persons does any act to effect the object of the conspiracy.

Nothing in this section shall be construed to supersede, limit, repeal or affect the provisions of section eight ( § 3-9-8), article nine, chapter three; section two ( § 5-1-2), article one, chapter five; section thirty-eight ( § 5A-3-38), article three, chapter five-A; section seven Any person who violates the provisions of this section by conspiring to commit an offense against the State which is a felony, or by conspiring to defraud the State, the state or any county board of education, or any county or municipality of the State, shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one nor more than five years or by a fine of not more than ten thousand dollars, or, in the discretion of the court, by both such imprisonment and fine. Any person who violates the provisions of this section by conspiring to commit an offense against the State which is a misdemeanor shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by confinement in the county jail for not more than one year or by a fine of not more than one thousand dollars, or, in the discretion of the court, by both such confinement and fine.

( § 20-7-7), article seven, chapter twenty; section sixteen ( § 60-6-16), article six, chapter sixty; sections seven, eight, nine and ten ( §§ 61-6-7 to 61-6-10), article six, chapter sixty-one; or section one ( § 62-8-1), article eight, chapter sixty-two; all of this Code. It shall not be a defense to any prosecution under this section thirty-one that the conduct charged or proven is also a crime under any other provision or provisions of this Code or the common law.

We find that the crime denominated as "(2) to defraud the State, the state or any county board of education, or any county or municipality of the State, . . . " is void for vagueness because it does not adequately inform the citizenry of the activity which may be considered criminal under the statute. This part of the statute sets forth the law in language which no man can understand. The same deficiency, however, does not apply to the provision which makes it unlawful for two or more persons to conspire "(1) to commit any offense against the State . . . " because the specific offenses are defined by statutory or common law.

Within the last three years this Court has struck down in whole or in part three other criminal statutes in this State on due process grounds, namely W.Va.Code, 49-1-4 (1941) concerning the definition of "delinquent child," State v. Flinn, W.Va., 208 S.E.2d 538 (1974); W.Va.Code, 61-3-20 (1929), the embezzlement statute, State ex rel. Cogar v. Kidd, W.Va., 234 S.E.2d 899 (1977); and W.Va.Code, 61-6-7 (1923), the "Red Men's Act," Pinkerton v. Farr, W.Va., 220 S.E.2d 682 (1975). The reason for striking down the definition of "delinquent child" was vagueness, and the reason for striking down parts of the embezzlement statute and the "Red Men's Act" was the existence in those statutes of unconstitutional presumptions. All three cases stand for the proposition that this Court will not be lax in the protection of individual rights when there is a constitutional infirmity in a statute, regardless of how laudatory are the motives of the Legislature.

While we recognize that W.Va.Code, 61-10-31 (1971) is modeled on a similar federal conspiracy statute, 18 U.S.C., § 371 (1948), and while we further recognize that the counterpart federal conspiracy statute has miraculously withstood constitutional scrutiny, we must still determine whether our own statute is constitutional under W.Va.Const., art. 3, § 10, the due process clause, in light of this State's long constitutional tradition of protecting individual rights. As we said in syl. pt. 1 of State v. Flinn, supra :

A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.

The part of the conspiracy statute covering defrauding the State does not meet this test. While we do not disparage the Federal Courts' wisdom in permitting the word "defraud" in 18 U.S.C., § 371 (1948) to take on expanded meaning with successive imaginative prosecutions, we believe that to permit such a course of conduct in this State would be an abomination to all free men The word "defraud" can be used under so many circumstances to denote the perpetration of evil that it is almost as broad as the word "evil" itself. ² Clearly we would not uphold a statute which provided "any person who shall commit evil within the State of West Virginia shall be guilty of a felony." Such a statute would not give definite notice to the citizenry of what specific acts were considered by the Legislature to be worthy of criminal sanctions at the time the statute was...