State v. Childers, No. 20426

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 415 S.E.2d 460,187 W.Va. 54
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Kennie CHILDERS, Defendant Below, Appellant.
• Docket Number: No. 20426
• Decision Date: 05 March 1992

Page 460

415 S.E.2d 460 187 W.Va. 54 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Kennie CHILDERS, Defendant Below, Appellant. No. 20426. Supreme Court of Appeals of
West Virginia. Submitted Jan. 21, 1992.
Decided March 5, 1992.

Page 461

[187 W.Va. 55] Syllabus by the Court

1. "[Under Article III, Section 14 of the West Virginia Constitution,] [a]n indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense." Syllabus Point 1, State v. Furner, 161 W.Va. 680, 245 S.E.2d 618 (1978).

2. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

3. Upon the reversal of a criminal case on appeal, the State is generally not precluded by double jeopardy principles from procuring a new indictment and retrying the defendant, except when a criminal conviction is set aside because of insufficient evidence.

4. In an indictment charging a corporate officer, it is not essential that the corporate name be mentioned, so long as the officer is identified and the requisite criminal elements are outlined.

5. Officers, agents, and directors of a corporation may be criminally liable if they cause the corporation to violate the criminal law while conducting corporate business.

J.W. Feuchtenberger, Stone, McGhee, Feuchtenberger & Barringer, Bluefield, for appellant.

Joanna I. Tabit, Deputy Atty. Gen., Charleston, for appellee.

MILLER, Justice:

Kennie Childers, the defendant below, appeals the final order of the Circuit Court of McDowell County, dated May 23, 1990,

Page 462

[187 W.Va. 56] denying his motions for judgment of acquittal and for a new trial. On appeal, the defendant contends that the indictment under which he was tried was fatally defective; we agree, and we reverse the defendant's conviction.

I.

The defendant is the president of a company called "Olde Fern, Inc.," which operated a coal mine and preparation plant at Algoma, McDowell County. On June 2, 1989, the defendant met with Roy Smith, the Commissioner of the West Virginia Department of Labor (the Department), and Clarence Compton, a compliance officer for the Department. During the meeting, Mr. Smith told the defendant that under W.Va.Code, 21-5-14(a) (1989), of the West Virginia Wage Payment and Collection Act (the Act), Olde Fern, Inc., would be required to post a wage bond. ¹

On June 8, 1989, Mr. Compton went to the mine site and asked the defendant whether he had posted the wage bond. When Mr. Compton learned that the defendant had not complied, he obtained authorization from the Commissioner to issue a cease and desist order as provided for in W.Va.Code, 21-5-15(c)(1) (1989). ² Under the terms of the cease and desist order, Olde Fern, Inc., had five days to secure a wage bond. If within that time the corporation did not post a wage bond, it was prohibited from further operations. The defendant was informed that if the corporation violated the cease and desist order, he would be subject to possible incarceration, a fine, or both. ³

Six days later, Mr. Compton returned to the job site to discover the coal mine and preparation plant operating at full capacity. Because the defendant had still failed to secure a wage bond, Mr. Compton obtained a felony warrant for Mr. Childers' arrest.

In October, 1989, the defendant was indicted by a grand jury for failing to secure a wage bond. The indictment recited that the defendant "committed the offense of 'Failure to Provide a Bond' by unlawfully, feloniously, knowingly, willfully and with intent to deprive employees of their wages and fringe benefits ... failing to provide and maintain a bond as required by Chapter 21, Article 5, Section 14 of the West Virginia Code[.]"

The defendant moved to quash the indictment because it did not adequately inform him of the nature of the crime charged or state the elements of the statutory offense. The circuit court denied this motion. Following a two-day jury trial, the defendant

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[187 W.Va. 57] was convicted, sentenced to one-to-three years incarceration, and fined $25,000. ⁴

II.

A.

The defendant's primary assignment of error is that the indictment was fatally defective because it failed to allege all of the elements of the offense charged. Moreover, he contends that the indictment is flawed because it does not contain any of the essential language of W.Va.Code, 21-5-15(c), or provide a "plain, concise and definite written statement of the essential facts constituting the offense charged." W.Va.R.Crim.P. 7(c)(1).

The Sixth Amendment to the United States Constitution commands, in part: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation[.]" In United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588, 593 (1875), the United States Supreme Court outlined the minimum criteria an indictment must meet in order to comply with the Sixth Amendment:

"The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone."

Thus, if the averments of the indictment are sufficient to enable the defendant to prepare his defense and to plead former jeopardy after acquittal or conviction, the constitutional requirement is met. See Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). See generally M. Rhodes, Orfields Criminal Procedure Under the Federal Rules § 7.7 (2d ed. 1985).

We adopted a similar test under Article III, Section 14 of the West Virginia Constitution ⁵ in Syllabus Point 1 of State v. Furner, 161 W.Va. 680, 245 S.E.2d 618 (1978):

"An indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense."

See also State v. Fitcher, 175 W.Va. 681, 337 S.E.2d 918 (1985); State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981); State v. Ash, 139 W.Va. 374, 80 S.E.2d 339 (1954).

In Syllabus Point 3 of State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983), we adopted a test to assist prosecutors in preparing an indictment for a statutory offense:

"An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based."

See also State v. Young, 185 W.Va. 327, 406 S.E.2d 758 (1991); State v. Satterfield, 182 W.Va. 365, 387 S.E.2d 832 (1989); State v. Nicastro, 181 W.Va. 556, 383 S.E.2d 521 (1989); State v. Knight, 168 W.Va. 615, 285 S.E.2d 401 (1981); State v.

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[187 W.Va. 58] Parks, 161 W.Va. 511, 243 S.E.2d 848 (1978).

For example, in State v. Knight, supra, the defendant was convicted of indecent exposure. One of the elements of that crime is lack of consent by the victim. Because the indictment failed to allege this element, we held in Syllabus Point 2 of Knight:

"The State's failure to provide in the indictment sufficient information from which the defendant could determine the statute he was being charged with violating and to state each element involved in the crime did not give the defendant adequate notice from which he could prepare a defense and is grounds for reversal of the conviction obtained thereunder."

See also State v. Parks, supra; State ex rel. Cain v. Skeen, 137 W.Va. 806, 74 S.E.2d 413 (1953); Scott v. Harshbarger, 116 W.Va. 300, 180 S.E. 187 (1935). ⁶

B.

There are several obvious flaws in the indictment in this case. First, it recites the statute violated as W.Va.Code, 21-5-14. However, this section describes no criminal...