State Of West Va. v. Arthur McCoy
| Decision Date | 06 February 1940 |
| Docket Number | No. 8983,No. 8984,8983,8984 |
| Citation | 122 W.Va. 54 |
| Parties | State of West Virginia v. Arthur McCoy State of West Virginia v. Lewis McClung |
| Court | West Virginia Supreme Court |
1. Indictment
"It is generally both sufficient and necessary, in drafting indictments for statutory offenses, to follow the language of the statute." State v. Pennington, 41 W. Va. 599, 23 S. E. 918.
2. Indictment
A motion for a bill of particulars in a criminal case should be supported by affidavit specifying the information desired.
3. Searches and Seizures
Under Code, 62-1-18, a complaint for a warrant to search a place for pool tickets, chances, vouchers, and certificates kept and employed in violation of Code, 61-10-10, is properly grounded on the averment of the affiant that "he has cause to believe and does believe" that the indicated articles are unlawfully kept and used at the designated place.
Error to Circuit Court, Kanawha County.
Arthur McCoy and Lewis McClung were convicted of operating a poolroom and they bring error.
Affirmed.
J. V. Brennan, for plaintiffs in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
These cases are identical and were submitted together in this court for decision.
Both defendants were convicted in the intermediate court of Kanawha County, and sentenced to pay fines and undergo imprisonment for violation of Code, 61-10-10, which inhibits the operation of a poolroom, defined to mean "any room where any pool ticket, chance, voucher or certificate entitling or purporting to entitle the holder or promisee thereof, or any other person, to money or other thing of value, contingent upon the result of any horse race, prize fight, game of chance, game of skill or science, or other sport or contest, the information of which result is obtained by telephone, telegraph, wireless telegraphy or radio, or other electrical device."
The place involved is the Colonial Billiard Parlor at 117 Summers Street in the City of Charleston. On the execution of a search warrant the defendants were taken into custody, McCoy as owner and operator of the pool business, and McClung as his agent and assistant therein.
To the orders of the circuit court affirming the trial court's judgments this court awarded writs of error.
The defendants' first point is a challenge of the sufficiency of the indictments which charge, each in its first count, that the defendant therein named "did unlawfully and knowingly set up and promote a pool room in violation of Section 10, Article 10, Chapter 61 of the Official Code of West Virginia * * *", and in the second count, that the defendant named "was unlawfully connected with and interested in the management and operation of a pool room, in violation of Section 10, Article 10, Chapter 61, of the official Code of West Virginia, against the peace and dignity of the State."
The defendants urge that in these indictments the facts necessary to constitute the crime sought to be charged are not affirmatively alleged, and rely on the case of State v. Viquesney, 103 W. Va. 392, 137 S. E. 538, which emphasizes the general requirement of specificness in an indictment. But that exaction is not at variance with, nor exclusive of, an equally basic rule of criminal pleading: "It is generally both sufficient and necessary, in drafting indictments for statutory offenses, to follow the language of the statute." State v. Pennington, 41 W. Va. 599, 23 S. E. 918. That course was pursued in the indictments here under appraisal, and, in addition, the particularization required by the rule of the Viquesney case, we think, is not lacking. We perceive no deficiency in these pleadings. The case of State v. Matthews, 117 W. Va. 97, 184 S. E. 665, is closely analogous. Therein, the first count of the indictment charged that the defendant and another "unlawfully did set up and promote and were concerned in managing and drawing a lottery or raffle for money or other thing of value." That count and the others of the indictment were held sufficient. Consult State v. C. & P. Telephone Co., 121 W. Va. 420, 4 S. E. (2d) 257.
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