State Of West Va. v. Harrison

• Decision Date: 10 June 1947
• Docket Number: (CC 724)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. O. L. Harrison

130 W.Va. 246

State of West Virginia

v.O. L. Harrison

(CC 724)

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1947.

Decided June 10, 1947.

1. Constitutional Law-

The provisions of the statute, Section 22, Article 5, Chapter 61, Code of West Virginia, 1931, which create certain offenses, describe such offenses with sufficient certainty and definiteness and are not violative of the Constitution of this State.

2. Indictment

"An indictment, to be sufficient, must describe the offense with reasonable certainty and precision, that the accused may prepare his defense and avail himself of a judgment of conviction or acquittal in bar of a further prosecution for the same crime; and that the court may be able, when necessary, to determine whether the facts alleged constitute an offense, or, if proved, support a verdict of conviction, and to impose the proper sentence therefore, if one should result from a trial of the case." Point 1, Syllabus, State v. Wohlmouth, 78 W. Va. 404.

3. Indictment

An indictment for the statutory crime of willfully secreting a record in the keeping of a public officer and belonging to his office from a person having the right to inspect such record, which does not directly charge with reasonable certainty and precision every material element or ingredient necessary to constitute the offense and which, as to any such element or ingredient, states a conclusion instead of facts, does not sufficiently describe such offense and is, for that reason, fatally defective.

Certified from Circuit Court, Lewis County.

O. L. Harrison was charged with the offense of willfully secreting a record in the keeping of and belonging to the office of a public officer. The circuit court overruled defendant's demurrer to the indictment and certified two questions to the Supreme Court of Appeals.

Affirmed in part; reversed in part; and remanded with directions.

Ira J. Partlow, Attorney General, and J. Chandler Curd, Assistant Attorney General, for plaintiff.

Herbert M. Blair, for defendant.

Haymond, Judge:

In this proceeding two main questions are presented which the Circuit Court of Lewis County, upon the joint application of the parties, has certified to this Court. The first question involves the constitutionality of Section 22, Article 5, Chapter 61, Code of West Virginia, 1931. The second question has to do with the sufficiency of the indictment against the defendant based upon the foregoing statute.

The defendant, O. L. Harrison, Mayor of the City of Weston, was indicted by the grand jury of Lewis County at the regular November term, 1946, of the circuit court of that county for the offense of willfully secreting a record in the keeping of and belonging to the office of a public officer. That offense, a misdemeanor, is created by Section 22, Article 5, Chapter 61, Code of West Virginia, 1931. That section contains this language:

"If any clerk of a court, or other public officer, fraudulently make a false entry, or erase, alter or destroy any record in his keeping and belonging to his office, or shall willfully secrete any such reccord from any person having the right to inspect the same, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State."

The indictment charges that the defendant, in Lewis County, within one year next preceding the finding of the indictment "did willfully and unlawfully secrete the 'docket' from one Margaret Holt Early, she then and there being a member of the Common Council of the City of Westom, a municipal corporation, and having a right to inspect the said 'docket, ' which said docket was a public record of said municipal corporation, required by law to be kept in the office of the Mayor of said municipal corporation, the said O. L. Harrison being then and there the Mayor of said municipal corporation, located within the County and State aforesaid, and as such Mayor, a public officer, ".

The defendant appeared and entered his written demurrer to the indictment. By his demurrer he challenged the constitutionality of the statute and the sufficiency of the indictment if the statute should be held to be constitutional. The circuit court overruled the demurrer and certified the questions raised by it to this Court.

As a general rule courts do not pass upon the constitutionality of a challenged statute unless that question is necessary to the decision of the case. Edgell v. Conaway, 24 W. Va. 747; State v. McCoy, 91 W. Va. 262, 111 S. E. 125. This widely recognized principle is based upon the attitude of deference of the judiciary for the legislative department of the government. Payne v. Staunton, 55 W. Va. 202, 46 S. E. 927. In this instance, for reasons to be stated later in this opinion, determination of the constitutionality of the statute is not essential to the decision of this case; and though this Court recognizes the principle just stated and ordinarily is disposed to apply it, the situation here presented justifies the consideration and the determination of both of the questions certified. A situation similar to that presented in this case existed in the case of State v. Mangus, 120 W. Va. 415, 198 S. E. 872, in which the trial court sustained a demurrer to an indictment for reckless driving based upon a statute which created that offense and held the statute unconstitutional on the ground that its language was too indefinite and uncertain to state an offense. Those questions were certified here. This Court upheld the constitutionality of the statute but affirmed the action of the trial court in sustaining a demurrer to the indictment.

In the consideration of the constitutionality of the statute on which the indictment is based, the scope of the inquiry is limited. As no trial has been held and no judgment imposing the statutory punishments of fine, imprisonment, forfeiture of office and disqualification from holding office in the future has been entered, the validity of that portion of the statute is not presented and, for that leason, it may not now be made a point of decision. Though its constitutionality is not challenged as violative of the provision of the Constitution which requires the penalties to be proportioned to the character and the de- gree of the offense, the forfeiture and the disqualification provisions of the statute have not been unnoticed. As already stated, they are not at present a determinable issue and, for that reason, they have not been passed upon. Accordingly, no opinion is entertained or expressed with respect to the constitutionality of that part of the statute.

The principal ground upon which the defendant attacks the constitutionality of the statute, and the sole ground to which consideration is confined, is that the language of Section 22, Article 5, Chapter 61, Code of West Virginia, 1931, is too vague and too indefinite to constitute a valid statement of any offense.

In resolving the question of the constitutionality of an act of the Legislature which creates an offense and imposes penalties for its commission, two controlling principles must be kept in mind. The first of these principles is that the power of the legislative department to create an offense is subject only to the limitations imposed by the State and Federal Constitutions. State v. Woodward, 68 W. Va. 66, 69 S. E. 385. The test of legislative power in this State is constitutional restriction. That which the Constitution of this State does not prohibit the Legislature from doing, and which does not violate the Constitution of the United States, the Legislature may do. Harbert v. County Court, 129 W. Va. 54, 39 S. E. 2d 177; State Road Commission v. County Court, 112 W. Va. 98, 163 S. E. 815. The power of the Legislature of a State is an attribute of sovereignty and its power would be absolute if there were no constitutional limitations. Howard v. Ferguson, 116 W. Va. 362, 180 S. E. 529. The other principle is that any doubt as to the constitutionality of an act of the Legislature will always be resolved in favor of the validity of the statute. State v. See, 129 W. Va. 722, 42 S. E. 2d 31; State v. Furr, 101 W. Va. 178, 132 S. E. 504.

The defendant insists, however, that it can not be determined, from the words of the statute, when his act violates its provisions. In this jurisdiction a statute which undertakes to create a statutory offense, to be valid, must define or specify the acts necessary to constitute the offense with sufficient certainty to enable a person to know, when he does an act, whether it is forbidden by the statute. State v. Lantz, 90 W. Va. 738, 111 S. E. 766, 26 A. L. R. 894. See Hartford v. Davis, 107 W. Va. 693, 150 S. E. 141, and United States v. L. Cohen Grocery Company, 255 U. S. 81, 65 L. ed. 516, 41 S. Ct. 298. Unless an act of the Legislature creating a statutory offense satisfies this requirement of certainty in the description of the crime, it is violative of the constitutional provisions that in all trials the accused shall be fully and plainly informed of the character and the cause of the accusation, Section 14, Article III, Constitution of West Virginia, and that no person shall be deprived of life, liberty, or property, without due process of law, Section 10, Article III, Constitution of West Virginia, and is void for uncertainty and indefiniteness. The challenged statute is framed in broad general terms. It refers to any record in the keeping of a public officer and belonging to his office. It imposes criminal liability upon thpse within its scope who willfully secrete any such record from any person who has the right to inspect it. Though each of its essential words is comprehensive in character, the...