State Of West Va. v. Wheeler
| Decision Date | 06 May 1941 |
| Docket Number | (No. 9159) |
| Citation | 123 W.Va. 279 |
| Parties | State of West Virginia v. Oscar O. Wheeler |
| Court | West Virginia Supreme Court |
In the trial of an indictment for violating the provisions of Code, 3-7-1, by fraudulently obtaining signatures to a certificate of nomination, when the only alleged misstatement properly charged in the indictment is shown by the evidence of the State to have been true, the question of the guilt or innocence of the accused should not have been submitted to a jury, and a verdict of guilty should be set aside.
Under Code, 61-11-18, a previous sentence of fifteen years in a court martial proceeding is not a like punishment when compared with confinement in the penitentiary.
Error to Circuit Court, Raleigh County.
Oscar O. Wheeler was convicted of fraudulently obtaining signatures to a certificate of nomination, and he brings error.
Judgment reversed; verdict set aside; case remanded.
Lee, Blessing & Steed and Howard B. Lee, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
Kenna, President:
Oscar O. Wheeler, on August 6, 1940, was convicted in the Criminal Court of Raleigh County of having violated the provisions of Code, 3-7-1, and of having been previously convicted and sentenced for a felony. The sentence of the court was that he be confined in the penitentiary for a term of not less than one nor more than ten years, at the expiration of which, his confinement continue for an additional term of five years, due to the previous con-
viction. The Circuit Court of Raleigh County declined his petition for a review, which was later granted by this Court.
The indictment charges the accused with having circulated a certificate for the purpose of bringing about the nomination of candidates of the Communist Party under Code, 3-4-29, including himself as a gubernatorial candidate, and of having obtained the signature of one Alex Davis by knowingly misrepresenting that the paper in question was in fact a petition "to have a colored man on the ticket as a candidate for Vice-President and to make working conditions better, but in no wise did he represent that the same was in fact a certificate of nomination by the Communist party of the United States, by means of which fraudulent and false pretense, the said Oscar Wheeler did unlawfully and feloniously, falsely secure the signature of the said Alex Davis to said certificate of nomination, against the peace and dignity of the State." The indictment was demurred to as charging no offense.
It will be observed that one of the charges accuses the defendant with having failed to represent that the petition was in fact a certificate of nominations by the Communist Party of the United States. The indictment fails to allege that the certificate was in fact what the defendant failed to represent it as being. No case is cited in the state's brief holding it to be a criminal fraud or false pretense to fail to disclose as a matter of fact, a matter not set up as being an actual fact.
Another deception that Wheeler is accused of committing is the representation that the certificate was intended to make working conditions better. This plainly relates to the future, and since the anticipation of future happenings is merely a matter of opinion, would not be a false statement of fact. It is unnecessary, we believe, to cite authority on that question.
The remaining false representation is alleged to be the statement of the accused that the petition or certificate was for the purpose of nominating a colored man as a candidate for Vice President. Treating this misrepre- May 1941] State v. Wheeler sentation as sufficiently alleged, although the indictment nowhere alleges that the certificate of which Wheeler was procuring signers was not for the purpose of nominating a colored man for Vice President, the proof of the state, which includes the certificate in question, establishes without question that part of its object was to place upon the Communist ticket as a candidate for Vice President the name of James W. Ford, a colored man from the State of Alabama.
Treating the averment of representations not made by Wheeler and the averment that he falsely represented the happening of future events as charging no offense under Code, 3-7-1, eliminates from the charging part of the indictment all but the representation that the certificate was for the purpose of placing a colored man on the ticket as a nominee for Vice President, and...
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