State v. Bailey, 13521

• Decision Date: 09 December 1975
• Docket Number: No. 13521,13521
• Citation: 220 S.E.2d 432,159 W.Va. 167
• Parties: STATE of West Virginia v. Dorsel E. BAILEY.
• Court: West Virginia Supreme Court

Page 432

220 S.E.2d 432

159 W.Va. 167

STATE of West Virginia v. Dorsel E. BAILEY.

No. 13521.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1975.

Syllabus by the Court

1. 'Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign.' Point 5, Syllabus, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

2. A mere employee of a county sheriff is not an officeholder disqualified from grand jury service under the provisions of W.Va.Code, 52--2--2, as amended.

3. In the absence of statutory requirements to the contrary, possible bias or prejudice, resulting from the relationship of an individual grand juror to a trial participant, is ordinarily not a disqualification.

4. Under the provisions of W.Va.Code, 52--2--12, an indictment will not be quashed or abated on the ground that one member of the grand jury is disqualified.

5. Where a motion to quash an indictment is based upon the mere suspicion of prejudice, resulting from the nature of a grand juror's employment, the application of the curative provisions of W.Va.Code, 52--2--12, does not impinge upon the constitutional parameters of the Fifth or Fourteenth Amendment of the United States Constitution or of Article III, Section 4 of the Constitution of West Virginia.

6. The offense of joyriding, as defined by W.Va.Code, 17A--8--4, as amended, is not a lesser included offense of grand larceny.

7. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.

8. Voluntary drunkenness does not ordinarily excuse a crime.

Kennad L. Skeen, Larry L. Skeen and Lawrence B. Mentzer, Ripley, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for defendant in error.

FLOWERS, Justice:

The defendant, Dorsel Bailey, was convicted in the Circuit Court of Jackson County of grand larceny of an automobile and was sentenced to one to ten years in the state penitentiary. An employee of the Sheriff of Jackson County served on the Grand Jury which returned the indictment against him. The defendant sought to quash the indictment on the basis of the disqualification of the Grand Juror and the resulting infringement on defendant's constitutional rights. Defendant assigned the adverse ruling of the circuit court as one of his principal grounds of error. He also challenges the refusal of the trial court to instruct the jury concerning the misdemeanor of 'joyriding' under W.Va.Code, 17A--8--4, as amended. Other errors, which were assigned by the defendant in his petition but not pursued in his brief, involve the admissibility of certain evidence, the sufficiency of the evidence to support the verdict and judgment, and the refusal of the trial court to give a defense instruction on intoxication.

The grand larceny conviction is based upon the defendant's admitted, nonconsensual 'taking' of an automobile owned by James Pauley. The defendant predicated his defense upon alternative theories of not guilty by reason of intoxication or guilty of the lesser offense of 'joyriding'.

The defendant testified that on the evening the offense was committed he had left his place of employment at about 4:00 p.m. and visited three 'beer joints' where he drank twenty-four to thirty bottles of beer. He interrupted his activities once during the evening to go home to shower and change his clothes. By 10:00 p.m. when he left the last tavern, he said he was 'getting pretty drunk.' He walked around town in the vicinity of the Ripley Municipal Building and, since he 'didn't have nothing to do,' 'started looking in the cars'. He looked at two other cars before finding the Pauley car in its owner's driveway with the keys in it. He said that other details of the taking were somewhat 'hazy', but the owner of the car recalled that it was about 11:00 p.m. when he heard his car 'start up'. Pauley got outside in time to see it being driven away and immediately reported the theft to the City Police office located 70 to 80 feet away. A report broadcast by the Police Chief alerted two Jackson County Deputy Sheriffs, Long and Guthrie, who proceeded toward Interstate 77 which, in a northerly direction from Ripley, leads into Ohio. As they approached the intersection of that highway at Silverton, seven miles north of Ripley, they saw the stolen car stopped at the gasoline pump of a service station.

The deputies used their cruiser to block the car from the front, but as Deputy Long approached the car, the defendant spun his car wheels in reverse and then came toward Long. Thinking the driver was trying to run over him, Deputy Long fired a shot through the passenger side of the windshield. The driver of the vehicle then swerved past the gasoline pump, 'jumped a planter' and proceeded toward Ravenswood. As the vehicle pulled out, the deputy fired again and hit a rear tire. A third shot, fired while in pursuit of the vehicle, struck a second rear tire.

After being driven only a short distance, the car went out of control and then struck a bank on the right side of the road. The defendant emerged from the car, ran across the highway, jumped over a fence, and ran down into a field. In flight, he knocked over a beehive and ran into a tree. He was found unconscious by the two deputies about twenty minutes after the theft of the vehicle had been reported. He was taken to the emergency room of Jackson General Hospital, where he was treated for bee stings and released.

Deputy Long testified that he smelled no alcohol on the defendant, although he admitted that Bailey 'possibly had been drinking some, and under those circumstances, normal would be hard to judge.' Deputy Guthrie and an emergency medical technician at the scene testified that they detected no odor of alcohol from the defendant and observed no behavior indicating his intoxication. Another ambulance attendant, a city policeman, and the deputy who escorted the defendant into jail could not say he was intoxicated. To the contrary, a fellow inmate at the county jail, testified that he smelled alcohol on the defendant and observed that he had been drinking. The witness could not state, however, whether the defendant was intoxicated.

The defendant testified that he had stolen three other automobiles, adding that on each occasion he had been intoxicated at the time. When he committed his last offense he took a car which was also in close proximity to the police station. He claimed he had no intention of permanently depriving the owner of his vehicle. He denied that he ever intended, or had any recollection of stating to others that he intended, to take the car to Ohio. This testimony was contradicted by an inmate who testified on rebuttal, that the defendant said 'he was going to Ohio,' but he didn't say when he was going.

I

The defendant maintains that his constitutional rights were violated and the indictment against him was void because Shirley J. McCrady, an employee of the Sheriff of Jackson County, served on the grand jury. The thrust of this contention is that Miss McCrady was an 'officeholder', disqualified from grand jury service under W.Va.Code, 52--2--2, as amended, and as a law enforcement employee was disqualified for bias and prejudice. The defendant contends that, since the sheriff of Jackson County is disqualified as an 'officeholder' within the meaning of the statute, any employee of the sheriff is also disqualified. He reasons that the same public policy which mandates the disqualification of the sheriff for jury service appertains to the sheriff's deputies and by an extension of logic to an employee selected by the sheriff. ¹

The qualifications of grand jurors are now prescribed by statute. W.Va.Code, 52--2--2, as amended, provides in part:

'The jury commissioners appointed under the provisions of section three of article one of this chapter shall select and draw persons for grand juries. * * * The persons so listed shall be of good moral character, who have never been convicted of a felony or of any scandalous offense; and shall have been bona fide citizens of the State and county for at least one year immediately preceding the preparation of the list, and Shall not be officeholders under the laws of the United States or of this State: Provided, that the term 'officeholders' shall not be taken, read or understood to include notaries public.' (Italics supplied.)

The term 'officeholders under the laws of * * * this State' necessarily implies the existence of a public office. This Court has previously considered the definition and juxtaposition of the terms 'officer' and 'public office'.

'* * * As a general rule, it may be stated that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which are continuing in their nature and not occasional or intermittent. But one who merely performs the duties required of him by persons employing him under an express or implied contract, though such persons themselves be public officers, and though the employment be in or about public work or business, is a mere employee.' State ex rel. Key v. Bond, 94 W.Va. 255, 260, 118 S.E. 276, 279 (1923).

'Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee...