State v. Abdella

• Decision Date: 27 July 1954
• Docket Number: No. 10539,10539
• Citation: 82 S.E.2d 913,139 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: STATE, v. ABDELLA.

Page 913

82 S.E.2d 913

139 W.Va. 428

STATE, v. ABDELLA.

No. 10539.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1954.

Decided March 9, 1954.

Dissenting Opinion July 27, 1954.

Syllabus by the Court

1. Where the language of a statute is clear and unambiguous, and the intent of the Legislature is evident from the very terms thereof, the statute should not be interpreted but applied in a manner consonant with the legislative purpose for which it was enacted.

2. 'The limits of the application of a statute are generally held to be coextensive with the evil or purpose it was intended to suppress or effectuate, and neither stop short of, nor go beyond, the purpose which the Legislature had in view.' City of Charleston v. Charleston Brewing Co., 61 W.Va. 34, Pt. 2 Syl. .

3. Code, 57-5-2, is comprehensive in its terms, both in divesting a witness, who is compelled to give self-criminating testimony or produce evidence which will criminate him, of the privilege of refusing to so testify or produce such evidence, which the witness has under Article V (Fifth Amendment) of the Constitution of the United States, and Section 5, Article III of the Constitution of West Virginia that 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *', and in providing inter alia, that a person so compelled to testify or to furnish such evidence shall not be prosecuted for the offense in regard to which he is so compelled to testify or furnishevidence, and in clothing such involuntary witness with complete immunity in regard to such compelled self-criminating evidence.

4. A witness, who has been required by a court order, as provided by Code, 57-5-2, to appear and testify at a hearing before a grand jury, such hearing concerning whether law violations prevail in the county for which the grand jury is convened at the county seat thereof and whether law violators have been paying money to the public authorities of the city and county, in which the grand jury is convened, for immunity or protection from arrest and prosecution for law violations, which witness is asked by the prosecuting attorney and a member of the grand jury whether he has paid money to any public official for 'protection to operate your [witness's] place of business', namely, a billiards establishment, to which witness answered in the negative, which questions and answers, for the reason that they inherently suggest that witness has been engaged in law violations such as those under investigation, constitute self-criminating testimony within the meaning of Code, 57-5-2, which renders the witness immune from prosecution under an indictment thereafter found, charging the witness with law violations of the kind under investigation by the grand jury.

5. The immunity from prosecution provided by Code, 57-5-2, is not waived by a witness in a criminal proceeding, in which the witness is the defendant, by the filing of a plea of the general issue, or by failing to assert the privilege of immunity in the first instance at the time the witness was compelled to testify.

E. B. Pennybacker, Walter T. Crofton, Parkersburg, M. E. Boiarsky, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., James C. Blanton, Spec. Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

In this criminal proceeding the defendant, Betrus M. Abdella, was indicted and convicted under West Virginia Code, Chapter 61, Article 10, Section 11, for unlawfully, feloniously, and knowingly using and permitting to be used the Ambassador Billiard Room, located at No. 615 Avery Street, Parkersburg, Wood County, for 'policy' and 'numbers' playing, and for writing 'numbers'; and delivering and receiving money and playing 'policy' and 'numbers', and aiding in the playing thereof, and delivering and receiving money for 'numbers', and for having in his possession 'numbers', and was sentenced to confinement in the Wood County Jail for a period of six months, fined one thousand dollars, and ordered to pay the costs. To the judgment of sentence this writ of error is prosecuted.

The defendant filed his verified plea, asserting that under Code, Chapter 57, Article 5, Section 2, the State 'ought not further to prosecute said indictment against him:' (1) Because of 'his immunity from prosecution' for the offense charged in said indictment, and praying that he be dismissed and discharged; (2) because on April 26, 1951, the Circuit Court of Wood County had entered an order requiring defendant to testify before the Grand Jury, then in session, which provided that the defendant 'shall have complete legal immunity in regard thereto as the law provides'; and (3) because the defendant 'did so appear and testify and give evidence before the Grand Jury in regard to the offense charged against him.'

An answer filed on behalf of the State denies that the defendant did 'at any time testify and give evidence before the Grand Jury in regard to the offense charged against him in said indictment', and asserts that defendant 'has not acquired any immunity from prosecution'; and that the 'abstract of the transcript of the evidence adduced before the Grand Jury was filed by the State and made a part of the record by court order entered on May 24, 1951.'

The trial court, over defendant's objections and exceptions, sustained the State's motion that the issue raised by the special plea and answer thereto be tried by the court in lieu of a jury, and found and adjudged that: (1) The 'abstract of the transcript of the testimony' of defendant is a true, correct, and complete transcript of all the testimony given by the defendant before the grand jury; (2) no issue of fact is raised upon such plea, which would require the determination of a jury, but that the issue is one of law to be determined by the court; and (3) defendant's testimony before the grand jury is not self-incriminating, and the offense charged in the indictment 'does not charge the defendant with or furnish the basis for a prosecution for any offense in regard to which defendant was compelled to testify to furnish evidence before the Grand Jury.' Upon these findings the circuit court, over defendant's objections and exceptions, overruled the defendant's plea of immunity.

The defendant then filed 'Defendant's Special Plea', asserting again that he is immune from prosecution under Code, 57-5-2, for the offense charged in the indictment; and again prayed judgment of dismissal and discharge 'from the said premises'. To this plea the State demurred, denying: (1) That the same defense had been presented and ruled upon by the trial court; and (2) that defendant entered 'his plea of not guilty * * *, and thereby waived the defense' presented in said plea. The trial court sustained the State's demurrer, and overruled defendant's motion for permission to withdraw his plea of not guilty.

At the conclusion of the State's evidence in chief and the trial court's refusal to direct a verdict in defendant's favor, defendant moved that he be permitted under his plea of not guilty to introduce evidence to the effect that he had been granted immunity, having testified before the grand jury in pursuance of the order of the court to the matters involved in the charge of the indictment, or if the court determines that the matter should be offered in the absence of the jury, the defendant 'will be prepared to offer it in that manner'. The State resisted this motion, and the court overruled it.

Defendant then entered a plea of not guilty, and demurred to the indictment, and moved to quash the same, which demurrer the court overruled, and a jury trial followed.

At the trial the court, over defendant's objections and exceptions, admitted in evidence the complaint for the search warrant, the search warrant, the officer's returns and amended returns thereon, and the personal property listings of the items delivered to the justice of the peace resulting from the search under the warrant.

The circuit court overruled the defendant's motion that he be permitted to offer evidence in support of one of the grounds assigned in support of his position that the warrant and search thereon were illegal, and that such offer be made either before the jury or before the court in lieu of a jury.

At the conclusion of the State's evidence, defendant moved to exclude the State's evidence and for a directed verdict, which motion the court overruled, and the defendant excepted. At the conclusion of all of the evidence in the case the trial court, over defendant's objections and exceptions, gave State's instructions Nos. 1, 4, as amended, and 5, as well as State's instructions Nos. 2 and 3, to which defendant offered no objection, and refused to give defendant's instructions Nos. 1, 3, 4, 5, 7, 9, 12, 13, 14, 15, 16, and 17.

After the jury had returned its verdict, finding the defendant 'guilty as charged in each of the three counts in the within indictment', the defendant moved the court that the verdict be set aside and a new trial awarded, and filed in writing the following grounds: (1) The verdict is contrary to and unsupported by the law and the evidence; (2) the trial court erred in overruling defendant's motion to set aside the verdict and grant a new trial; (3) the trial court erred in overruling defendant's demurrer to the indictment, as well as defendant's motion to quash the indictment; (4) the trial court erred in overruling defendant's plea, claiming immunity from prosecution, pursuant to Code, 57-5-2, and in failing to enter judgment dismissing and discharging defendant 'from the said premises in the indictment specified.'

The record discloses that the defendant, a lifelong resident of Parkersburg, Wood County, married and the father of one child, operates the 'Ambassador Billiard Room', hereinafter referred to as 'Ambassador Billiards', located in a building at 615 Avery Street, in the City of Parkersburg, the front portion of...