State v. Haskins
| Decision Date | 10 January 1923 |
| Docket Number | (C. C. No. 205.) |
| Citation | 115 S.E. 720 |
| Court | West Virginia Supreme Court |
| Parties | STATE. v. HASKINS et al. |
(Syllabus by the Court.)
Certified Questions from Circuit Court, Barbour County.
Lee Haskins and others were convicted of larceny. On certified questions. Ruling affirmed.
E. T. England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for the State.
The questions certified arise on a challenge to the sufficiency of the indictment. A demurrer to the indictment was overruled, a trial was bad resulting in a verdict of "guilty as charged in the indictment"; on motion the verdict was set aside because of misdirection on the counts in the indictment, the first seven of which were based on section 92 of chapter 112, Acts 1921, which section the court held to be unconstitutional and void as being in contravention of section 30, art. 6, of the Constitution, and a new trial awarded defendants on the 8th count, which charges them with having committed grand larceny. The court then certified the following questions:
The first seven counts in the indictment are based on section 92 of chapter 112, Acts 1921, which the court held to be unconstitutional, and which is as follows:
The first four counts in the indictment charge the defendants jointly; the first of feloniously taking and removing from an automobile belonging to George L. Siers, without his knowledge or consent, six automobile tires with rims and inner tubes, of the value of $250; the second count makes a like charge with intent to steal; the third charges the felonious taking of the property, temporarily and with intent to deprive the owner thereof of the use and possession thereof; the fourth is similar to the first except that it charges that the property was permanently taken; the fifth, sixth, and seventh counts charge each of the defendants separately of feloniously taking and removing the said property from the owner without his knowledge or consent, and in each count one of the defendants is charged as principal, the other two being charged with having been present feloniously aiding and abetting the principal in such felonious taking and removing. The eighth count is a common-law count against the defendants jointly for grand larceny of the same property belonging to the same person and of the value of $250.
It will be noted that the punishment for petit larceny under said section 92 of chapter 112, Acts 1921, is a fine of not less than $100 nor more than $500, and with confinement in the county jail for not less than 60 days nor more than 6 months; whereas the punishment for petit larceny under section 14 of chapter 145 of the Code (Code 1913, § 5205) is confinement in jail not exceeding one year; that the punishment under said section 92 for stealing or carrying away property the value of which exceeds $20 is a fine of not less than $500 nor more than $5,000. and with confinement in the penitentiary for not less than one year nor more than 5years; whereas, the punishment for grand larceny under said section 14 of chapter 145, Code, is confinement in the penitentiary not loss than 2 nor more than 10 years. There is quite a difference in the punishment for petit or grand larceny of the property designated in said section 92 from the punishment of petit or grand larceny of all other kinds of property under the general statute.
It seems that it would not he necessary to consider and answer certified questions 1 and 2 if it be held that section 92 is unconstitutional, for, if it be so, the counts based thereon would fall, and would be treated as mere surplusage. But it may be well, for other reasons, to consider and answer them.
The first seven counts charge the different ways in which parts of the automobile may be taken under the statute, each of which is an offense as therein defined, and are designed to meet the evidence which might develop on the trial. The fifth, sixth and seventh counts each charges one of the defendants of the offenses prescribed in the section, and also charges the other two with being present and aiding and abetting in the commission of the offense. A count may contain a charge of larceny against a principal and also a charge against another as accessory before the fact. See section 8 of chapter 152 of the Code (Code 1913, § 54G5), which says that any such accessory before the fact may be indicted together with such principal or separately. State v. Roberts, 50 W. Va. 422, 40 S. E. 484; Hawley v. Commonwealth, 75 Va. 847. These counts being for the same offense, and for the purpose of meeting the various phases which the evidence might develop, and which, if sustained, would entail the same punishment, there is clearly no misjoinder as to them. Does the addition of the eighth count, the common-law count for grand larceny, make a misjoinder? It may be observed that this count is for the same offense as that charged in the first seven counts—that is, the felonious stealing, taking, and carrying away the six automobile tires, five of the same being practically new and one being old, together with rims and inner tubes, of the value of $250 or more, the goods and chattels of George L. Siers.
The general rule is that if all of the offenses charged in one or more counts of the indictment represent one continuous transaction, they may be joined as distinct offenses, and, unless they appear on the face of the indictment to involve a different transaction, a motion to quash for misjoinder should be overruled. State v. Ringer, 84 W. Va. 546, 100 S. E. 413; State v. Miller, 89 W. Va. 84, 108 S. E. 487. A joinder of two or more offenses of the same general nature in an indictment is not ground for demurrer. State v. Jarrell, 76 W. Va. 263, 85 S. E. 525. In order to protect himself on the trial under such an indictment the accused may require an election by the state as to which of the alleged offenses it will rely upon for conviction. Offenses of the same nature may be joined though they differ in degree. Lazier v. Commonwealth, 10 Grat. (Va.) 70S.
"Where two or more distinct felonies are contained in the same indictment, it may he quashed, or the prosecutor compelled to elect on which charge he will proceed, but the indictment will not be quashed or set aside on demurrer where several counts arc introduced solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offense, or for cognate offenses; though when the offenses developed in the evidence are distinct, the prosecution, as will presently be seen, will be compelled before verdict to elect that on which it relies." 1 Whar. Crim. Pro. p. 388.
When the offenses are cognate and are charged in the same indictment it matters not that the several counts are of different grades and call for different punishments. Hawker v. People, 75 N. Y. 487. And, under the United States Revised Statutes, separate offenses of the same class growing out of the same transaction may be united in the same indictment. U. S. v. Jones (D. C.) 69 Fed. 973; Anderson v. Moyer (D. C.) 193 Fed. 499. Counts for offenses of the same nature at common law and under a statute may be joined. State v. Thompson, 2 Strob. (S. C.) 12, 47 Am. Dec. 599; 9 L. R. A. 184, note.
The counts in the indictment all being for the same offense, and meant to meet only the various aspects which the evidence may present, it is reasonably clear that there is no misjoinder; and we so answer the first two questions certified.
Is section 92 unconstitutional and void because it contravenes section 30 of article 6 of the Constitution, which reads:
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