State v. Lee Haskins et at.

• Decision Date: 16 January 1923
• Citation: 92 W.Va. 632
• Court: West Virginia Supreme Court
• Parties: State v. Lee Haskins et at.

92 W.Va. 632

State

v.Lee Haskins et at.

Supreme Court of Appeals of West Virginia.

Submitted January 10, 1923.

Decided January 16, 1923.

1. Indictment and Information Where Offenses Charged in One or More Counts Represent Continuous Transaction, or of Same General Nature, Indictment, Not Bad Because of Misjoinder.

If all of the offenses charged in one or more counts of an indictment represent but one continuous transaction, or are of the same general nature, the indictment is not bad because of misjoinder of counts. The rights of the accused may be protected by a motion, seasonably made, to require the state to elect on which it will rely for conviction. (p. 636).

2. Statutes "Object of Act" Defined.

The "object" of an act, as that word is used in Sec. 30, Art. 6 of the constitution, means the matter or thing forming the groundwork of the act, which may contain many parts germane to the title, and which when traced back will lead the mind to the object as expressed in the title as the generic head. (p. 636).

3. Same -Title of Act Liberally and Comprehensively Construed to Give Validity as Whole if Object Contained in Act Not so Expressed in Title as to be Logically Traced as Generic Head, Such Part Void.

The title of an act should be construed most liberally and comprehensively in' order to give validity to all parts of the act. If, however, any object is contained in the act which is not so expressed in the title and which cannot be logically traced back to the title, liberally construed, as its generic head, that part so contained is void. (p. 637).

4. Same Law Relative to Larceny of Automobiles Held Unconstitutional.

The subject matter of sec, 92 chap. 112, Acts 1920-21, is not germane to the object expressed in the title of that act, is in contravention of sec, 30, Art, 6 of the contstitution, and therefore that section is void. (p. 640).

(McGinnis, Judge, absent).

Certified Questions from Circuit Court, Barbour County.

Lee Haskins and others were convicted of larceny. On certified questions.

Ruling affirmed.

E. T. England, Attorney General and B. Dennis Steed, Assistant Attorney General, for the State.

Lively, Judge:

The questions certified arise on a challenge to the sufficiency of the indictment. A demurrer to the indictment was overruled, a trial was had 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 sec. 92 of chap. 112, Acts 1921, which section the court held to be unconstitutional and void as being in contravention of sec. 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:

"1. Is there a misjoinder of eounts in the indictment?

"2. Was it legal to join the eighth or common law count with the other seven founded upon the statute?

"3. Is section 92 of chapter 112 of the Acts of the Legislature of 1921 constitutional, within the provisions of section 30 of Article 6 of the constitution?"

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:

"Sec. 92. Whoever maliciously or without the knowledge or consent of the owner or the person in lawful charge thereof, or with intent to steal or deprive the owner of the use or possession thereof, either temporarily or permanently shall take and remove from any automobile or other motor vehicle any part or portion thereof or any thing attached thereto or contained therein; and whoever shall assist, aid or abet or be present for the purpose of assisting, aiding and abetting any person or persons in such taking and removing from any automobile or other motor vehicle of any part or portion thereof or anything attached thereto or contained therein, without the knowledge or consent of the owner or person in lawful charge thereof, or with the intent to deprive the owner or the person in lawful charge thereof of the use and possession thereof either temporarily or permanently; and whoever shall buy, receive or have in his possession any of such articles or any part thereof so unlawfully removed knowing them to have been taken without the knowledge or consent of the owner or person in lawful charge thereof or with intent to steal or deprive the owner or person in lawful possession thereof either temporarily or permanently of the use and possession thereof, shall, if the value of such article or articles so taken and removed be less than twenty dollars, be deemed guilty of a misdemeanor and upon conviction thereof, shall be punished with a fine of not less than one hundred dollars nor more than five hundred dollars, and with confinement in the county jail for not less than sixty days nor more than six months. If the value of such article or articles shall exceed twenty dollars, he shall be deemed guilty of a felony and shall be punished with a fine of not less than five hundred dollars nor more than five thousand dollars and with confinement in the penitentiary for not less than one year nor more than five years."

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 $250.00; 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 $250.00.

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 $100.00 nor more than $500.00, and with confinement in the county jail for not less than sixty days nor more than six months; whereas the punishment for petit larceny under section 14 of chapter 145 of the Code 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 $20.00 is a fine of not less than $500.00 nor more than $5,000.00, and with confinement in the penitentiary for not less than one year nor more than five years; whereas, the punishment for grand larceny under said section 14 of chapter 145, Code, is confinement in the penitentiary not less than two nor more than ten 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 be 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, 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; 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 8th 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 $250.00, 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; State v. Miller, 89 W. Va. 84. 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. 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,...