State Of West Va. v. Charlton.

Decision Date10 September 1877
CourtWest Virginia Supreme Court
PartiesState of West Virginia v. Charlton.andState of West Virginia v. Allum.

1, An indictment for selling without license intoxicating liquors to be drank where sold, uses the language of the 1st section Of chapter 99 of Acts 1872-3 creating the oflense, charging that the defendant, at a given place in the county, on a given day, did sell to a certain person, naming him, intoxicating liquors to be drank in, upon or about the building or premises where sold, without first obtaining a State license therefor according to law. Held:

I. Upon demurrer this indictment is fatally defective, for uncertainty in charging that the liquor was to be drank either in the building or upon the premises.

Similar indictments were found in the county court of Marshall county, one against Absalom Charlton, the other against William Allum; the defendants were respectively found guilty by juries empannelled to try the respective cases, and judgments were entered up upon the verdicts. Writs of error were allowed to the circuit court of that county, and the judgments were respectively affirmed by that court. Hon. T. Melvin presiding. Thereupon the defendants respectively obtained writs of error to this Court.

Green, President, furnishes the following statement of the cases:

Absalom Charlton was indicted in the circuit court of Marshall county on October 21, 1873. The indictment charges that " Absalom Charlton on the 1st day of Octoiber 1873, at his house in said county, did sell at retail to Robert Bodocher intoxicating liquors to be drank in, upon, or about the building or premises where sold, without obtaining a State license therefor according to law." This indictment was certified to the county court for further proceedings in the manner required by the statute. The defendant then demurred to the indictment, and the State joined in the demurrer, and the court thereupon overruled the demurrer; the jury who tried the case on the plea of not guilty, found the defendant guilty and assessed the fine at $30.00; and the court entered up a judgment " that the State recover against the defendant $30.00, the fine by the jurors in their verdict aforesaid found, and the costs of this prosecution; and also that said defendant be imprisoned in the jail of said county without bail or mainprise, for the space of ten days, and afterwards till he pay the fine and costs aforesaid, or be otherwise discharged by due course of law." A writ of error and supersedeas was awarded, and the circuit court of Marshall county affirmed this judgment; and the defendant obtained a writ of error from this Court. The case of the State of West Virginia v. William Alltim is in all respects similar; and a like judgment was rendered by the county court of Marshall county, and affirmed by the circuit court of Marshall county, and brought in like manner to this Court by a writ of error.

Attorney General, for the State.

Robert McConnell, for Charlton,

Hanson Criswell, for Allum.

Green, President, delivered the opinion of the Court:

The question for consideration in these cases is: Should the court on the demurrers to the indictments severally have sustained the indictments as sufficient? The indictment in charging the offense uses the language of the statute, see chapter 99, section 1 of Acts of 1872-3, p. 253. In indictments it is generally proper and sufficient to describe the offense in the very terms I used by the statute for the purpose. Young's Case, 15 I Gratt. 666; Burner's Case, 13 Grata. 778. To this gen-1 eral rule there are exceptions. Thus in some cases it is neccessary for the allegation in the indictment to go beyond the words used in the statute; numerous examples are given of this in Bishop's Grim. Pro., vol. 1 section 369 to 374, of which it is unnecessary to speak. An instance however where the words of the statute ought not to be used, though not properly an exception to this general rule, exists, which I will specify, as it bears directly on the validity of the indictments in the cases before us. Where a statute, on which an indictment is founded, enumerates the offenses or intent necessary to constitute the offenses disjunctively, the indictment is fatally defective, which uses the words of the statute charging them disjunctively. See Wharton's Crim. Law, vol. 1 section 295; 1 Bishop's Crim. Pro., section 334. Thus in Angel's Case, 2 Va. Cases, p. 231, it was held that where the statute said," whoever shall unlawfully shoot or stab another, with intention to maim, disfigure, disable or kill shall be" &c, the indictment was properly drawn which charged the act done " with intention to maim, disfigure, disable and kill," and that the party on such an indictment should be found guilty, if his intention was only to maim, disfigure and disable and not to kill. If this indictment had followed the words of the statute, it would have been bad, for it would have violated the well established rule that an indictment must not state the offense disjunctively, when it is thereby left uncertain what is really intended to be relied on as the accusation. The question for consideration in the cases before us is, do the indictments in these cases violate this well established rule? It is uncertain from these indictments whether the State meant to rely upon the selling by the accused of intoxicating liquors at...

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14 cases
  • State v. Loy
    • United States
    • West Virginia Supreme Court
    • May 9, 1961
    ...v. Keller, 118 W.Va. 296, 191 S.E. 253; State v. Dawson, 117 W.Va. 125, 184 S.E. 253; State v. Miller, 68 W.Va. 38, 69 S.E. 365; State v. Charlton, 11 W.Va. 332. In the Stollings case the indictment charged that the defendant 'did unlawfully operate a motor vehicle upon a public road in sai......
  • State ex rel. Turner v. McClure
    • United States
    • West Virginia Supreme Court
    • March 26, 1970
    ...the offense disjunctively, when it is thereby left uncertain what is really intended to be relied on as the accusation.' State v. Charlton, 11 W.Va. 332, 27 Am.Rep. 603. This lays down a rule of reason which it is safe to follow, and which does not prevent a court from holding an indictment......
  • State v. Taylor
    • United States
    • West Virginia Supreme Court
    • July 11, 1986
    ...grounds, State v. 25 Slot Machines, 163 W.Va. 459, 256 S.E.2d 595 (1979); State v. Miller, 68 W.Va. 38, 69 S.E. 365 (1910); State v. Charlton, 11 W.Va. 332 (1877). Other courts have also concluded that each prohibited act listed disjunctively in a statute proscribing conduct relating to sto......
  • Weisman v. Holley Hotel Co
    • United States
    • West Virginia Supreme Court
    • February 19, 1946
    ...because the indictment should have used the conjunctive "and" instead of the disjunctive "or". In the earlier case of State v. Charlton, 11 W.Va. 332, 27 Am.Rep. 603, an indictment which charged the defendant with selling, without license, intoxicating liquors to be drunk where sold was hel......
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