State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars

• Decision Date: 03 March 1959
• Docket Number: No. 11009,11009
• Citation: 144 W.Va. 137,107 S.E.2d 353
• Parties: STATE of West Virginia v. GENERAL DANIEL MORGAN POST NO. 548 VETERANS OF FOREIGN WARS of the United States, a Corporation, Domenick L. Bonfili and Andy Pastoria.
• Court: West Virginia Supreme Court

Page 353

107 S.E.2d 353

144 W.Va. 137

STATE of West Virginia v. GENERAL DANIEL MORGAN POST NO. 548 VETERANS OF FOREIGN WARS of the United States, a Corporation, Domenick L Bonfili and Andy Pastoria.

No. 11009.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1959.

Decided March 3, 1959.

Syllabus by the Court

1. A subsequent statute, which revises the entire subject matter of a former statute and which is evidently intended as a substitute for such former statute, operates to repeal the former statute even though such subsequent statute does not contain express words to that effect.

2. When a statute which is declaratory of the common law is repealed the common law remains in force for the reason that the statute was an affirmance of the common law.

3. At common law, all forms of bribery, except bribery of a judge in connection with a cause pending before him, were misdemeanors punishable by fine and imprisonment.

4. Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use.

5. When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.

6. Under Section 4, Article 5, Chapter 61, Code, 1931, it is neither a felony nor a misdemeanor for any person to bribe or attempt to bribe any executive, legislative, judicial, or ministerial officer, other than a state officer of that character and a member of the legislature.

7. An indictment for a felony based on Section 4, Article 5, Chapter 61, Code, 1931, which charges the defendant with bribery of a county sheriff does not charge the defendant with the commission of a felony and is fatally defective as an indictment for an offense of that character; and the defendant can not be tried for a felony upon such defective indictment.

W. W. Barron, Atty. Gen., Stanley R. Cox, Jr., Pros. Atty., Monongalia County, Morgantown, for plaintiff in error.

Minter L. Wilson, Clark B. Frame, Morgantown, for defendant in error.

HAYMOND, Judge.

At the regular April Term 1958 of the Circuit Court of Monongalia County, the defendant Andy Pastoria was indicted for a felony by the grand jury attending that term of court. The offense charged in the indictment is that in January 1958, in Monongalia County, West Virginia, the defendant, well knowing that Charles J. Whiston was the Sheriff of that county, did wilfully, maliciously, unlawfully and feloniously, counsel, aid, abet and procure General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, a corporation, and Domenick L. Bonfili to commit a felony in that they did pay the sum of $100.00 to Charles J. Whiston, Sheriff of that county, to influence him not to enforce the laws of this State relating to gambling and sales of intoxicating liquor at the premises of the General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, a corporation, in that county.

The defendant moved to quash the indictment and the State filed its answer to the motion to quash. By final order entered June 25, 1958, the circuit court sustained the motion of the defendant, held the indictment to be fatally defective, and discharged the defendant, unless the State should apply for a writ of error from this Court within thirty days from the entry of the order quashing the indictment.

Upon the application of the Attorney General of this State and the Prosecuting Attorney of Monongalia County, in behalf of the State, filed July 22, 1958, this Court granted this writ of error and supersedeas on September 8, 1958, under Section 30, Article 5, Chapter 58, Code, 1931, which provides for a writ of error by this Court to any order or judgment of a circuit court in any criminal case in which an indictment has been held to be bad or insufficient upon application in behalf of the State if presented within thirty days from the entry of such order or judgment. See State v. O'Brien, 102 W.Va. 83, 134 S.E. 464; State v. Younger, 130 W.Va. 236, 43 S.E.2d 52.

The indictment is based upon Section 4, Article 5, Chapter 61, Code, 1931. This section was prepared by the Revisers of that Code as a composite of Sections 4, 5a(1) and 5a(2) of Chapter 147, Code, 1923, for the purpose, as stated in their note to the section, of making all bribery a felony instead of a misdemeanor with respect to certain public officers under Section 4 of Chapter 147, Code, 1923. The present statute, Section 4, Article 5, Chapter 61, Code, 1931, to the extent pertinent, provides that any person who shall bribe, or attempt to bribe, by directly or indirectly giving to or bestowing upon any executive, legislative, judicial, or ministerial officer 'of this State', or any member of the legislature, any gift, gratuity, money, testimonial or other valuable thing, in order to influence him in the performance of any of his official, public duties, or with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which may by law come or be brought before him in his official capacity, shall be guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary not less than one year nor more than ten years and be forever disqualified from holding any office or position of honor, trust or profit in this state. (Italics supplied).

When the Revisers prepared Section 4, Article 5, Chapter 61, Code, 1931, they also prepared Section 5 of the same article and chapter as a composite of Sections 5, 5a(3), and 5a(4) of Chapter 147, Code, 1923, for the purpose, as stated in their note to the section, of making the violation of the section by any executive, legislative, judicial or ministerial officer, or member of the legislature, a felony. Section 5 in effective provides that any executive, legislative, judicial or ministerial officer, or member of the legislature, who shall demand, receive or accept any gift, gratuity, money, testimonial or other valuable thing, from any person, company or corporation, under an agreement or understanding that his vote, opinion, judgment or decision shall be given or withheld in any particular manner upon a particular side of any question, cause or proceeding, which is, or may be by law brought before him in his official capacity, or that he will fail to perform or improperly perform any of his official, public duties, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one yer nor more than ten years, and shall also forfeit his office and be forever disqualified from holding any office or position of honor, trust or profit in this state.

Section 5, Article 5, Chapter 61, Code, 1931, modified and reenacted Sections 4, 5a(3) and 5a(4) of Chapter 147, Code, 1923. Under Section 4 any executive, legislative, or judicial officer who accepted a bribe was guilty of a misdemeanor; under Section 5a(3) any executive or judicial officer of this state who demanded or received a bribe was guilty of a felony; and under Section 5a(4) any member of the legislature who demanded or received a bribe was likewise guilty of a felony. Any person convicted under Section 5a(3) or Section 5a(4) was subject to imprisonment in the penitentiary for not less than five years nor more than ten years and was forever disqualified from holding any office or position of trust or honor in this state.

It is significant that the present statute, Section 4, Article 5, Chapter 61, Code, 1931, which provides that any person who shall bribe or attempt to bribe certain public officers shall be guilty of a felony, expressly designates the officers covered by the section as any executive, legislative, judicial, or ministerial officer of this state, or any member of the legislature. In that respect, the language of the section is similar to that contained in Sections 5a(1) and 5a(2) of Chapter 147, Code, 1923, in each of which the officers covered by the section are designated as any executive or judicial officer of this state or any member of the legislature. It is also significant that in the present statute, Section 5, Article 5, Chapter 61, Code, 1931, the officers who demand or accept a bribe are referred to generally as any executive, legislative, judicial or ministerial officer, or member of the legislature, and, unlike in Section 4, they are not designated as any executive, legislative, judicial or ministerial officer of the state and that the words 'of this State' are omitted from the section.

To determine the sufficiency of the indictment against the defendant it is necessary to consider the effect of the provision that any executive, legislative, judicial or ministerial officer of this state, in Section 4 of the present statute, and of the omission of the words 'of this State' concerning the executive, legislative, judicial, or ministerial officers mentioned in Section 5 of the present statute, in ascertaining the intent of the Legislature in enacting Section 4.

In State ex rel. Workman v. Anderson, 89 W.Va. 1, 109 S.E. 782, this Court said that the language of Section 5a(3) of Chapter 147, Code, 1923, relating to any executive or judicial officer of this state, was entirely different from the language of Section 5 of the same chapter relating to any executive or judicial officer and that the phrase 'of this state' qualified the officers mentioned in Section 5a(3) and meant state executive and judicial officers and did not mean or apply to executive or judicial officers generally. In that case a commissioner of the county court of Raleigh County, a county officer as distinguished from a state officer, was indicted for a felony under Section 5a(3) in accepting bribes in connection with the performance of his official duty. This Court, applying the well established rule that...