State v. Bruce.

• Decision Date: 03 July 1885
• Citation: 26 W.Va. 153
• Parties: State v. Bruce.
• Court: West Virginia Supreme Court

26 W.Va. 153

State

v.Bruce.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1885.

Decided July 3, 1885

1. The general rule is, that each count in an indictment must be suffi-

cient in itself to make a complete indictment; and averments in one count can not aid defects in another. To some extent repetitions may be avoided by referring from one count to another; but the reference must be so full and distinct as in effect to incorporate the matter going before with that in the count in which it is made. (p. 155.)

2. Our statute sec. 10, chap. 158, Code providing that no indictment

shall be quashed or deemed invalid for omitting to state the time at which the offence was committed, when time is not of the essence of the offence, does not make valid an indictment which fails to aver any date, or that the offer ce charged was committed at a time within the statutory bar, when the offence is one which the statute declares shall not be prosecuted after a prescribed limitation. (p. 156.)

3. Section 21 of chap. 158 of the Code, which declares, "no excep_

tion shall be allowed for any defect or want of form in any presentment or indictment founded on any provision of chap. 32 or 151," &c, is intended merely, to exclude defences which do not put in issue the truth of the charges averred in the indictment; and it does exclude exceptions to an indictment which avers facts that may be true and still not necessarily show the accused to be guilty of subsisting offence, (p. 157.)

4. An indictment for selling spirituous liquors, which fails to aver the date of the sale or that the sale was made within one year from the time the indictment was found by the grand jury, is fatally defective and will be held bad on demurrer. (p. 157)

A statement of the facts of the case will be found in the opinion ot the Court,

Alfred Caldwell, Attorney General, for the State.

The first assignment of error is the overruling of the demurrers to the indictments.

The first count in each indictment is good under § 1, ch. 82, of the Code, as amended by ch. 107, Acts 1882, (State v. Pendergast, 20 W. Va. 672; State v. Cox, 20 W. Va. 797.)

It is objected to the second counts, that they do not state the dates of the commission of the offences. This was not necessary, as time is not of the essence of the offence. (Code, ch. 108, § 10.) This section also cures the omission of the word " oath " in the first count of indictment No. 1. See also Code, ch. 158, § 21.

The second assignment of error is that the court erred in rendering judgment against the defendant in the absence of criminal intention. The intent here is immaterial. (White v. Comm., 78 Va. 484.) Moreover the accused is presumed to intend the natural consequences of his acts. (78 Va. 732.)

The prescriptions furnished no excuse or protection to the defendant, being fatally defective, (Code, ch. 32, § 4, as amended, Acts 1877,) of which the druggist was bound to take notice.

The cases were submitted to the court in lieu of a jury and should not be reversed because of the overruling of the demurrers to the second counts, even if those counts were bad; for there was ample testimony applicable to the first counts to sustain the judgments, and the evidence was all admissible. But if improper testimony had been introduced because of the defective indictments, it would not have affected the judgments. But if the court erred in overruling the demurrer, the defendant was not prejudiced thereby.

The pharmacy act (ch. 112, Acts 1882) does not relieve a druggist from the provisions of §§ 1 and 4, ch. 32 of the Code as amended. The two acts can stand together.

James H. McGinnis for plaintiff in error.

Snyder, Judge:

The defendant, L. W. Bruce was, at the May term, 1882, of the circuit court of Summers count}' indicted in two cases, which were at the September term, 1882, by consent tried together by the court, who found the defendant guilty and fixed his fines and gave judgment for $25.00 and costs in each case. The defendant moved the court to set aside its judgment, which motion being overruled, he excepted and by bill of exceptions had all the facts proved certified. The two indictments are substantially the same, and in form as follows:

" The jurors of the State of West Virginia in and for the body the county of Summers now attending the said court upon their oaths present that L. W. Bruce, on May 1, 1882, at his drug store in the county aforesaid, did sell spirituous liquors without license so to do, against the peace and dignity of the State.

" And the jurors aforesaid, upon their oaths aforesaid, do further present that the said L. W. Bruce, in the county aforesaid, was a druggist, and as such druggist, at his drug store in the town of Hinton, in the county aforesaid, did then and there unlawfully sell alcohol, spirituous liquors and wine, said sale not having been made for medicinal or manufacturing purposes, against the peace and dignity of the State."

The defendant demurred to the indictment and to each count thereof, which demurrers were overruled and the cases tried on the pleas of not guilty. The defendant obtained this writ of error.

The first question to be decided is: Did the court err in overruling the demurrers to the indictments? The first counts of each of the indictments are under sec. 1 of ch. 107 Acts of 1877, and plainly good. State v. Penalergast, 20 W. Va. 672.

The second counts are under the fourth section of said act and are sufficient, unless the omission to give any date to the offence in either is a fatal defect.

The general rule is, that each count in an indictment must be sufficient in itself to make a complete indictment, and averments in one count can not aid defects in another. To some extent the pleader may avoid repetitions by referring from one count to another. But the reference must be so full and distinct, as in effect to incorporate the matter going before with that in the count in which it is made. Thus, when the first count charged a larceny of goods of a value mentioned, and the second alleged a receiving of the " goods aforesaid," this was held not to draw into the second count the allegation of value contained in the first. 1 Bish. Crim. Fro., sec. 431; The State v. Lyon, 17 Wis. 237; The State v. McAllister. 20 Me. 374.

The second counts in this case give no dates whatever, nor do they refer to the preceding counts in a manner to supply this omission, unless this is done by the use of the words, "then and there." In the counts preceding a date and place are given. In the second no date is given, but a place, described differently from that in the first, is stated immediately preceding the words "then and there." Thus, upon any fair construction the word "there" in the second count must refer to the place named just before in the same count and not to the place mentioned in the first count. The word "there" thus necessarily refering to the place named in the second count, it would, it seems to me, be a forced construction to hold that the word "then," connected as it is with the word "there," refers to the preceding and not to the same count that the word "there"" does. It is true, there is no time mentioned in the second count to which the word "then" can properly refer, but even this does not authorize us to conclude that the pleader used this word as a reference to the proceeding count. The rule is, that the reference must be so full and distinct,...