State v. A. J. Simmons

• Decision Date: 29 September 1925
• Docket Number: (No. 5446.)
• Citation: 99 W.Va. 702
• Parties: State v. A. J. Simmons
• Court: West Virginia Supreme Court

99 W.Va. 702

State

v.A. J. Simmons

(No. 5446.)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1925.

Decided September 29, 1925

1. Indictment and Information -Use of Statutory Phrases Alone is Not Sufficient to Charge Violation of Offense Denounced by Statute Employing Broad and Comprehensive Terms; Indictment Charging Offense Which Statute Describes in Broad and Comprehensive Terms Should Specify in Detail Accusation it Prefers,

When the statute employs broad and comprehensive terms descriptive merely of the general nature of the offense denounced, the use of the statutory phrases alone is not sufficient to charge a violation of the statute. The indictment should give a more detailed specification of the accusation which it prefers, (p. 708).

(Indictments and Informations, 31 C. J. §§ 261, 264).

2. Same Indictment Charging Offense of Having Devised Scheme to Defraud Held Insufficient As Not Charging Partictdars of Scheme.

An indictment charging the accused with having devised a scheme to defraud, etc., under Section 6 of Chapter 55-B of Barnes Code, 1923, should narrate in the charge the particulars of the alleged scheme, (p. 711).

(Indictments and Informations, 31 C. J. § 268).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Error to Circuit Court, Harrison County. A. J. Simmons was convicted of having devised a scheme to defraud, and he brings error.

Reversed; verdict set aside; motion to quash sustained.

Powell & Clifford, and Robinson & Robinson, for plaintiff in error.

Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Hatcher, Judge:

Upon an indictment charging the device of a scheme to defraud, and an overt act in commission thereof, under section 6, chapter 55-B of Barnes Code, 1923, A. J. Simmons was found guilty by a jury in the Criminal Court of Harrison County, and by the court fined and sentenced to a term in the penitentiary. The Circuit Court of that County refused to review the case, and the defendant prosecutes error here. The indictment is in part as follows:

"The Grand Jurors of the State of West Virginia, in and for the body of the County of Harrison, and now attending The Criminal Court of said County, upon their oaths present that on the

........._____day of April, 1922, in the said County of

Harrison A. J. Simmons and W. M. Miller, having devised a scheme and artifice to defraud, as agents for the sale, securing subscriptions for, and distribution of the capital stock of the Gilmore Center Oil and Gas Company, a body corporate under the laws of the State of West Virginia, did then and there in said Harrison County and State of West Virginia, aforesaid, as such agents, knowingly, designedly, falsely, unlawfully and feloniously promote by prospectus and general offering, inducement and persuasion, the issue, distribution and sale of certain securities and stock, to-wit, certain shares of the capital stock of the Gilmore Center Oil and Gas Company, a body corporate under the laws of the State of West Virginia, as aforesaid, and in pursuance, and for the purpose of executing said scheme and artifice, and with intent to defraud, did then and there, to-wit, on the day and year aforesaid, in the County of Harrison, and the State of West Virginia, aforesaid, unlawfully and feloniously represent to one T. J. Laing" etc. (Here follows the charge of the overt act.)

The indictment is attacked as insufficient because it fails to set forth the particulars of the scheme to defraud, which it alleges A. J. Simmons and W. M. Miller devised. The State replies that in charging a statutory crime, it is only necessary to use the words of the statute, and that the indictment charges the offense in terms of the statute. In support of the indictment, the State relies on the cases of State v. Biffe, 10 W. Va. 794, Staie v. Watts, 43 W. Va 182, State v. Schnelle, 24 W. Va. 767, Stale v. Pennington, 41 AV. Va. 599, State v. McCoy, 61 AV. Va. 259, and State v. Constable, 90 AV. Va. 515. State v. Biffe, supra, holds:

"In an indictment for a statutory offense, it is generally proper and safest to describe the offense in the very terms used by the statute for that purpose".

The precepts in the other cases cited are no more binding or definite than is the one in State v. Biffe. State v. McCoy, supra, is stressed as a case which upheld an indictment under the conspiracy statute, though the indictment failed to set out '' the mode or manner'' of the conspiracy. The indictment in that case charged that the accused conspired together "for the purpose of inflicting punishment and bodily injury upon one Thomas Fleeman, and in pursuance of said combination... did slay, kill and murder the said Thomas Fleeman". The language of the statute adapted in this indictment is sufficiently broad and comprehensive to fully describe the nature of the offense. The approval by the court of the conspiracy part of the indictment, however, was merely casual. This appears from the opinion:

"But why discuss this conspiracy part of the indictment? There was no conviction of conspiracy, but of murder. Eliminate the conspiracy part, and we have left a good indictment for murder. Therefore, the conspiracy charge is not material''.

Certain cases from Arkansas, California, Kansas, and Wisconsin are cited which more strongly support the contention of the State. None of these decisions, however, give a satisfactory reason for approving the use of statutory terms in an indictment in case the statutory language is not sufficiently explicit of the offense charged.

Special reliance is placed in the State's brief on the case of United States v. Simmons, 96 U. S. 360. The fourth count of the indictment against Simmons charged that the accused "did knowingly and unlawfully engage in and carry on the business of a distiller within the intent and meaning of the Internal Revenue Laws of the United States with the intent to defraud the United States of the tax on the spirits distilled by him". In upholding this count, the court commented as follows:

"This count seems to us sufficient to authorize judgment thereon. It was not necessary to state in the indictment the particular means by which the United States was to be defrauded of the tax. The defendant is entitled to a formal and substantial statement of the grounds upon which he is questioned, but not to such strictness in averment as might defeat the ends of justice. The intent to defraud the United States is of the very essence of the offense; and its existence in connection with the business of distilling being distinctly charged, must be established by satisfactory evidence. Such intent may, however, be manifested by so many acts upon the part of the accused, covering such a long period of time, as to render it difficult, if not wholly impracticable, to aver, with any degree of certainty, all the essential facts from which it may be fairly inferred".

The reason advanced for upholding the count is not logical. The court confused the specification of the intent with the narration of overt acts under that intention. It may be impracticable to aver with certainty "all the essential facts," from which an intention "may be fairly inferred," but it is not impracticable for the pleader to state the intention which the acts manifest. The many acts referred to in the opinion grow out of and result from the intention. They necessarily imply and point to the intention. The acts may be many, but the intention is single. If the pleader knows the acts committed, he can readily deduce therefrom the gist of the intention. Unless some description of the plan, as well as the acts in pursuance of the intention, is related in the indictment, the accused is not sufficiently apprised of the nature of the accusation against him. Reasonable certainty in an indictment is required in another part of the above opinion, wherein the court discussed another count in the same indictment:

"Where the offence is purely statutory, having no relation to the common law, it is "as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expension of the matter". 1 Bishop, Crim. Proc. sec. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective, although it may follow the language of the statute".

While not directly referred to, the ruling in the Simmons case on count number 4 is...