State v. Cole
| Decision Date | 22 November 1977 |
| Docket Number | No. 13760,13760 |
| Citation | 160 W.Va. 804,238 S.E.2d 849 |
| Parties | STATE of West Virginia v. Clarence Delmar COLE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Point 1, Syllabus, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941).
2. "Penal statutes must be strictly construed against the State and in favor of the defendant." Point 3, Syllabus, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).
3. One charged under the provisions of W.Va.Code, 1931, 17C-5-2, as amended and in effect on March 13, 1975, with operating a motor vehicle upon a public parking lot while under the influence of intoxicating liquor cannot be convicted of an offense under said statute for the reason that a public parking lot is not a highway within the meaning thereof.
Earl W. Weller, Pros. Atty., Berkeley County, Martinsburg, for plaintiff in error.
Robert M. Steptoe, Martinsburg, for defendant in error.
In a warrant for a second offense of driving while intoxicated, issued upon the complaint of Harry L. Snow, Clarence Delmar Cole, on July 21, 1971, was charged with operating a motor vehicle while intoxicated. He was tried, convicted, fined $116.00 and sentenced to imprisonment in the city jail for a period of two days; also, his operator's license was revoked for six months. The second offense referred to in the above warrant occurred on March 13, 1975, it being therein charged that he "again did then and there unlawfully and feloniously operate a motor vehicle upon the streets of the City of Martinsburg, W. Burke Street Parking lot in said County, while intoxicated and under the influence of intoxicating liquor . . .".
Upon trial of the above charge in a justice of the peace court the defendant was found guilty and was sentenced to a term of six months in the county jail. He thereupon appealed to the Circuit Court in Berkeley County where he moved to quash the warrant. The court, finding that the warrant did not establish an offense under W.Va.Code, 1931, 17C-5-2, as amended, and that it did not therefore have jurisdiction to try the defendant, granted the Motion to Quash. The Court determined that the public parking lot was not a street or highway as defined by W.Va.Code, 1931, 17C-1-35, as amended.
This is an appeal by the State of West Virginia wherein it contends that the trial court erred as follows:
(1) By granting Defendant's Motion to Quash;
(2) By finding that the warrant does not state an offense under W.Va.Code, 1931, 17C-5-2, as amended; and
(3) By finding that it lacked jurisdiction to try the defendant.
The sole issue on this appeal is whether the charge in the warrant constituted an offense under W.Va.Code, 1931, 17C-5-2, as amended. That statute, as it read at the time of the alleged violation, provided:
(a) It is unlawful . . . for any person who is under the influence of intoxicating liquor to drive any vehicle on any highway of this State . . .
For the purpose of resolving this issue it is essential to determine whether the public parking lot where the defendant was arrested is a "highway", as contemplated by W.Va.Code, 1931, 17C-5-2, as amended.
As a general rule, words in statutes are taken to have been used in their ordinary sense and acceptation. See Wilson v. Hix, 136 W.Va. 59, 65 S.E.2d 717 (1951); Hereford v. Meek, 132 W.Va. 373, 52 S.E.2d 740 (1949); Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941); and Slack v. Jacob, 8 W.Va. 612 (1875). Therefore, as noted in 17 M.J., Statutes, § 61, "when one is prosecuted for something made a crime by statute, which had not theretofore been a crime, he has the right to demand that the words there used be given their common...
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