State v. Less, 14956

• Citation: 294 S.E.2d 62,170 W.Va. 259
• Decision Date: 29 July 1981
• Docket Number: No. 14956,14956
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Eugene LESS.

Page 62

294 S.E.2d 62

170 W.Va. 259

STATE of West Virginia v. Eugene LESS.

No. 14956.

Supreme Court of Appeals of West Virginia.

July 29, 1981.

Concurring Opinion June 28, 1982.

Syllabus by the Court

1. W.Va.Code, 61-10-31(1), is a general conspiracy statute and the agreement to commit any act which is made a felony or misdemeanor by the law of this State is a conspiracy to commit an "offense against the State" as that term is used in the statute.

2. "A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication." Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).

3. The terms of W.Va.Code, 61-10-31(1), are clear and unambiguous on their face and are of sufficient definiteness to give a person of ordinary intelligence fair notice that agreeing to commit an act made a felony or misdemeanor by the law of this State is prohibited.

4. In order for the State to prove a conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy.

5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the State's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

6. It is a matter within the sound discretion of the trial judge whether investigative services are necessary under W.Va.Code, 51-11-18, and the exercise of such discretion will not constitute reversible error unless the trial judge abuses such discretion.

7. Where the jury is permitted, but not required, to infer from the evidence that the defendant had the intent necessary for conspiracy to commit an offense against the State, and the jury is properly and adequately advised of the State's duty to prove that intent beyond a reasonable doubt, the giving of the instruction "that the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act," is not error.

Ross Maruka and C. Patrick Carrick, Fairmont, for appellant.

Chauncey H. Browning, Atty. Gen. and Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

The appellant, Eugene Less, was convicted of the crime of conspiracy to commit robbery. The case is before this Court on an appeal from a final order of the Circuit Court of Marion County sentencing the appellant to not less than one nor more than five years in the West Virginia Penitentiary, and denying his motion to set aside the verdict and award him a new trial. On this appeal the appellant assigns the following grounds as error: (1) the indictment charging conspiracy to commit robbery does not state an offense under W.Va.Code, 61-10-31(1); (2) W.Va.Code, 61-10-31(1) is unconstitutionally vague; (3) the evidence at trial was insufficient to support the jury's verdict of guilt; (4) the trial judge was biased against the appellant; (5) the trial judge's denial of the appellant's request for a private investigator to assist in the preparation of his defense; and (6) the trial judge's giving of two instructions offered by the State and refusal to give an instruction offered by the appellant.

I

The appellant, Eugene Less, was indicted, along with Twila Harris, Chris Sawitski, Jeffrey Sawitski, and Lisa Yost, by the November, 1978, Marion County Grand Jury. The indictment charged that the defendant "did unlawfully and feloniously conspire to commit an offense against the State of West Virginia, to-wit; the crime of robbery...." W.Va.Code, 61-10-31(1), provides, in pertinent part: "It shall be unlawful for two or more persons to conspire (1) to commit any offense against the State ... if ... one or more of such persons does any act to effect the object of the conspiracy...."

The appellant urges us to find that the indictment in this case does not state an offense under W.Va.Code, 61-10-31(1), because that section only prohibits "conspiracies directed against the State." In construing the phrase "any offense against the State" the appellant would have us distinguish between crimes, such as treason, "official bribery," and election fraud, which are "directed against the government of the State," and crimes, such as robbery, which are merely "directed solely against the person." The State argues, on the other hand, that W.Va.Code, 61-10-31(1), uses the phrase "any offense against the State" as a generic term denominating both felonies and misdemeanors. We think that a proper interpretation of W.Va.Code, 61-10-31(1), requires that we reject the distinction urged by the appellant and agree with the State on this issue.

W.Va.Code, 61-10-31, was enacted by the Legislature in 1971. ¹ 1971 W.Va.Acts ch 45. The language of this section is almost identical to that of the federal conspiracy statute which provides, in pertinent part: "If two or more persons conspire ... to commit any offense against the United States ... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined ... or imprisoned...." 18 U.S.C. § 371. The only substantive difference between the federal provision and the provision in our Code is the denomination of the sovereign against which the offense is committed. Interpretations given 18 U.S.C. § 371 by federal courts are, therefore, a relevant consideration in interpreting our State version of that statute. State ex rel. Knight v. Public Service Commission, 161 W.Va. 447 245 S.E.2d 144 (1978).

Federal courts have long held that the term "any offense against the United States" in 18 U.S.C. § 371 means the commission of any act made an offense by the laws of the United States, regardless of whether that act is directed at the government itself or a private individual. See, e.g., United States v. Lyman, 190 F. 414 (D.Or.1911); Radin v. United States, 189 F. 568 (2nd Cir. 1911), cert. denied, 220 U.S. 623, 31 S.Ct. 724, 55 L.Ed. 614 (1912); United States v. Thomas, 145 F. 74 (W.D.Mo.1906); United States v. Sanche, 7 F. 715 (W.D.Tenn.1881). Indeed, as late as 1975, the United States Supreme Court has referred to 18 U.S.C. § 371 as the "general conspiracy statute." United States v. Feola, 420 U.S. 671, 687, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975).

South Dakota also has a general conspiracy statute modeled after 18 U.S.C. § 371. The South Dakota statute provides, in pertinent part: "If two or more persons conspire ... to commit any offense against the state of South Dakota ... and one or more of the parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty...." S.D. Compiled Laws Ann. § 22-3-8. In State v. Henglefelt, 72 S.D. 306, 33 N.W.2d 492 (1948), the South Dakota Supreme Court rejected the same argument that the appellant makes in the case presently before us: "It appears manifest that ... it is an offense against the State of South Dakota to do that which is declared by the law of the state to be prohibited and criminal."

We hold that W.Va.Code, 61-10-31(1), is a general conspiracy statute and the agreement to commit any act which is made a felony or misdemeanor by the law of this State is a conspiracy to commit an "offense against the State" as that term is used in the statute. Robbery is a common law felony for which punishment is provided by W.Va.Code, 61-2-12. State ex rel. Vandal v. Adams, 145 W.Va. 566, 115 S.E.2d 489 (1960); State v. McCoy, 63 W.Va. 69, 59 S.E. 758 (1907). The indictment in this case, therefore, properly charged the appellant with the crime of conspiracy to commit robbery under W.Va.Code, 61-10-31(1). ²

II

The appellant argues that W.Va.Code, 61-10-31(1), is not set out with sufficient clarity to give a person of reasonable intelligence fair notice that his contemplated conduct is prohibited and that the statute is, therefore, unconstitutionally vague. The vagueness standard is well settled:

A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.

Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). See also State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981).

The constitutionality of W.Va.Code, 61-10-31, was considered by this Court in State ex rel. Whitman v. Fox, 160 W.Va. 633, 236 S.E.2d 565 (1977). In that case the appellants had had been indicted under W.Va.Code, 61-10-31(2), for conspiring to defraud Logan County by depriving the county of its right to the honest performance of its commissioners of election. We granted a writ of prohibition to consider, among other things, a vagueness challenge to W.Va.Code, 61-10-31. In striking down the second clause of that statute, but upholding the first, we said:

[T]he crime denominated as '(2) to defraud the State, the state or any county board of education, or any county or municipality of the State, ...' is void for vagueness because it does not adequately inform the citzenry of the activity which may be considered criminal under the statute. This part of the statute sets forth the law in language which no man can understand. The same deficiency, however, does not apply to the provision which makes it unlawful for two or more persons to conspire '(1) to commit any offense against ...