State v. Keller

• Decision Date: 23 February 1937
• Docket Number: C. C. 569.
• Parties: STATE v. KELLER.
• Court: West Virginia Supreme Court

191 S.E. 201

118 W.Va. 296

STATE
v.
KELLER.

C. C. No. 569.

Supreme Court of Appeals of West Virginia.

February 23, 1937

Submitted February 9, 1937.

Dissenting Opinion May 15, 1937.

Syllabus by the Court.

A warrant, under Code, 17-8-25, which charges the driving of an automobile on a public highway in this State by a person "intoxicated and under the influence of intoxicating liquor drugs or narcotics" meets the constitutional requirement (Const. art. 3, § 14) that an accused person "shall be fully and plainly informed of the character and cause of the accusation"; and the demurrer thereto should have been overruled.

KENNA, President, and RILEY, J., dissenting.

Certified from Circuit Court, Nicholas County.

Freeman Keller was charged with driving an automobile while intoxicated, and after sustaining a demurrer to the warrant and complaint, the court certified the case to the Supreme Court of Appeals.

Trial court's ruling reversed.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.

G. G. Duff, of Summersville, F. N. Bacon, of Fayetteville, and Brooks B. Callaghan, of Summersville, for defendant.

FOX, Judge.

The defendant, Freeman Keller, was arrested on a warrant issued by a justice of the peace, in which it was charged that "the said Freeman Keller on the 13th day of April, 1935, in said Nicholas County, did unlawfully drive and operate a certain vehicle to-wit: an automobile on a certain public highway within this state while he the said Freeman Keller was then and there intoxicated and under the influence of intoxicating liquor drugs or narcotics." The defendant was taken before the justice who issued the warrant and a hearing was held there [118 W.Va. 297] on. No objection was made to the warrant before the justice, but a plea of not guilty was entered, a trial had, the defendant was found guilty, and fine and imprisonment imposed. From this action of the justice, an appeal was taken to the circuit court, and in that court, defendant filed what he terms a demurrer to the warrant and complaint, which demurrer the court sustained, and, on its own motion, certified the case to this court for review. The grounds of demurrer interposed were that the complaint and warrant set forth, disjunctively, at least three different modes of committing the offense charged therein, and that the accused was not fully and plainly informed of the character of the offense charged against him.

The statute on which this prosecution is based reads: "No person shall drive or operate any vehicle, motor driven or otherwise, upon any public road or street in this State, while intoxicated, or under the influence of intoxicating liquor, drugs or narcotics." Code, 17-8-25.

It will be observed that the warrant under consideration uses the language of the statute except that the statute reads "intoxicated, or under the influence of intoxicating liquor, drugs or narcotics" while the warrant charges that the defendant was "intoxicated, and under the influence of intoxicating liquor drugs or narcotics."

The defendant contends that the warrant fails to advise him...