State v. Harry Vaughan.
| Decision Date | 27 March 1923 |
| Docket Number | No. 4645.,4645. |
| Citation | 93 W.Va. 419 |
| Court | West Virginia Supreme Court |
| Parties | State v. Harry Vaughan. |
1. Indictment AND Information Count Omitting Conclusion "Against Peace and Dignity of the State" Fatally Defective.
Under section 8, Article II of the Constitution each count in an indictment must have as a conclusion, "against the peace and dignity of the State", and a count omitting such conclusion is fatally defective, (p. 422).
2. Same Averments in one Count Cannot Aid Defects in An-other; Reference in one Count to Another Must be so Clear and Distinct as to Incorporate the Matter Referred to in the Count to Which Reference Made.
Generally, 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 count; but to some extent repetitions may be avoided by referring from one count to another. In such case the reference must be so clear and distinct as in effect to incorporate the matter referred to in the other count with the matter in the count in which the reference is made. (p. 422).
3. Same Reference in Second Count to Date of Crime in First Count Held Sufficient.
The first count in an indictment alleged that defendant, "on the first day of September, 1921, and within one year next prior to the finding of this indictment, did unlawfully have in his possession a certain quantity of 'moon-shine liquor' ". The second count charged that defendant, "on the day and year aforesaid, in said county, did unlawfully manufacture, sell, offer, keep, store, and expose for sale and solicit and receive orders for liquor and absinthe and drinks compounded with absinthe." The reference in the second count to the date alleged in the first count is sufficiently clear and distinct and charges that the offenses mentioned in the second count were committed on the 1st day of September. 1921, and the time is sufficiently laid. (p. 422).
4. Same Defective First Count Immaterial. Where State Elected to Try Defendant on Second Count.
The fact that the first count is fatally defective for want of a proper conclusion and that during the course of the trial the state elected to try the defendant upon the second count makes no difference; for the purpose of aiding the allegation. of time in the second count, the first count remained a part of the indictment, (p. 422).
5. Same "Duplicity", or "Double Pleading". Defined; Count not Subject to Demurrer or Motion to Quash Because of Duplicity.
Duplicity, or double pleading, consists in stating for one purpose two or more distinct grounds of complaint or defense, when one of them would be as effectual in law as both or all; it is a fault, but one of form only; and a count in an indictment charging the commission of two or more misdemeanors, though faulty because of duplicity, is not subject to demurrer or motion to quash on that ground, (p. 424).
6. Criminal Law Defendant May Compel State to Elect on Which of Tiro Offenses Charged in Indictment it Will Rely for Conviction: Where Evidence Tends to Prove But one of Offenses Charged in Indictment. Refusal of Defendant's Motion to Require Election not Erroneous.
Upon a trial on a count in an indictment charging two or more misdemeanors, if the state offers evidence tending to prove the commission of two or more of the offenses charged, the defendant, at the close of the state's evidence, may compel an election of the offense on which the state will rely for conviction; but if the evidence tends to prove the commission of but one of the offenses charged, there is no necessity of a formal election on the record, and to refuse defendant's motion to require an election on the part of the state is not error. (p. 425).
Error to Circuit Court, Mingo County. Harry Vaughan was found guilty of an offense against the prohibition laws, and he brings error.
Affirmed.
James Damron, for plaintiff in error.
E. T. England, Attorney General, R. A. Blessing, Assistant Attorney General, and W. G. Brown, for the State.
Defendant was found guilty of an offense against the prohibition laws and assigns error.
The indictment returned September 10, 1921, is in two counts, as follows:
"State of West Virginia, Mingo County, to-wit:
IN THE CIRCUIT COURT OF SAID COUNTY.
The grand jurors, in and for the body of the County of Mingo, and now attending said court, upon their oaths do present that Harry Vaughan, on the 1st day of September, 1921, and within one (1) year next prior to the finding of this indictment, did unlawfully have in his possession a certain quantity of 'moonshine liquor', to-wit: one (1) pint.
And the grand jurors aforesaid, do further present that the said Harry Vaughan, on the day and year aforesaid, in said county, did unlawfully manufacture, sell, offer, keep, store, and expose for sale and solicit and receive orders for liquor and absinthe and drinks compounded with absinthe, against the peace and dignity of the state."
Defendant's demurrer to the indictment and each count was overruled; likewise his motion to quash the indictment and each count. The court sustained his motion to require the state to elect upon which count it would try him, and the state elected to try him upon the second count. He then asked the court to require the state to elect upon which offense charged in the second count it would try him, but the court overruled his motion. He then pleaded not guilty.
After the state had concluded its evidence, he renewed his motion to require an election by the state of the particular offense on which it would rely for conviction, but the motion was overruled.
The assignments of error are:
(1). The court erred in overruling his demurrer and motion to quash the indictment and each count.
(2). The court erred in not requiring an election on the part of the state of the particular offense charged in the second count on which it would try him, and of a like motion as to the offense for which it would seek a conviction.
The first count is clearly bad because it has no proper conclusion as required by section 8, article II of the Constitution. The demurrer to that count should have been sustained.
The points urged against the second count are (1) that since the first count is clearly bad, the expression in the second count "on the day and year aforesaid" can not refer back to the time laid in the first count, hence there is no time laid in the second count; that the indictment being for a misdemeanor, it must show on its face that the offense was committed within one year next prior to the finding of the indictment; and (2) that it is bad for duplicity, in that it joins several misdemeanors with a felony.
As to the first objection:-The second count, taken alone, does not state when the offense was committed. The first count states that defendant unlawfully had in his possession a quantity of "moonshine liquor" on September 1st, 1921. The second count fixes the time by reference only, "on the day and year aforesaid." Is this allowable? To some extent the pleader may avoid repetition by referring from one count to another. It is not a safe practice, but it may be done. However, 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. State v. Bruce, 26 W. Va. 153. In that case there were two counts; the first charged that defendant "on May 1, 1882, in the sounty aforesaid" sold spirituous liquors without a license; the second alleged that defendant was a druggist and that at his drug-store, "in the town of Hinton, in the county aforesaid, did then and there sell alcohol," etc. The court held that the expression "then and there" was not a sufficient reference to the date named in the first count; that it did not incorporate in the second count the date alleged in the first count, hence the second count was held had. But such is not the case here. The phrase "on the day and year aforesaid" refers to the first day of September, 1921, and to no other date, as there is no other date to which reference could be made. That is the only date mentioned in the indictment. A casual reading of the indictment must irresistibly lead any one to conclude that the time of the commission of the offenses in the second count is fixed as of September 1, 1921, and shows that it was within the...
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