State v. Loy

• Citation: 119 S.E.2d 826,146 W.Va. 308
• Decision Date: 09 May 1961
• Docket Number: No. 12080,12080
• Parties: STATE of West Virginia v. Edward June LOY.
• Court: Supreme Court of West Virginia

Page 826

119 S.E.2d 826

146 W.Va. 308

STATE of West Virginia v. Edward June LOY.

No. 12080.

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1961.

Decided May 9, 1961.

Syllabus by the Court

1. Though a statute creates and defines separate criminal offenses in the disjunctive, an indictment charging more than one of such offenses in the same count should state the offenses in the conjunctive.

2. Though separate criminal offenses charged in the same count of an indictment should be stated in the conjunctive, it is generally not error to use the disjunctive where only the method or manner of the commission of an offense is charged.

3. An indictment alleging a prior conviction for the purpose of augmenting the sentence to be imposed, is sufficient, as to such prior conviction, if it avers the former conviction with such particularity as to reasonably indicate the nature and character of the former offense, the court wherein the conviction was had and identifies the person so convicted as the person subsequently indicted.

4. A defendant convicted of a second offense under Code, 17C-5-2, as amended, is not entitled to, and a court has no power to grant, probation.

Loudoun L. Thompson, William H. Loy, Romney, for plaintiff in error.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Edward June Loy was convicted by a jury of Hampshire County, on an indictment which charged that he did, on the 30th day of April, 1960, 'unlawfully drive and operate a motor vehicle upon the public highway * * * while, he, the said Edward June Loy, was then and there intoxicated and under the influence of intoxicating liquors, against the peace and dignity of the State * * *'. A further charge, contained in a separate paragraph of the indictment, was to the effect that '* * * on the 21st day of December, 1955, rhe said Edward June Loy was tried and convicted upon his, the said Edward June Loy, plea, of guilty before A. L. Russell, a duly qualified and acting Justice of the Peace * * * upon a lawful warrant * * * charging the said Edward June Loy with having unlawfully driven and operated a motor vehicle upon a highway in said county and state, while he, the said Edward June Loy, was then and there intoxicated and under the influence of intoxicating liquors and was thereupon fined the sum of $100.00, which fine was paid on the 21st day of December, 1955, against the peace and dignity of the State'. It will be noticed that the indictment does not charge the date on which the previous violation occurred, for that it occurred within the five year period immediately before the date of the occurrence of the violation first charged in the indictment.

The verdict returned by the jury was, 'We, the jury, find the defendant guilty as charged in the indictment of both first and second offenses of driving intoxicated'. The sentence of the court on the verdict was that the defendant '* * * be confined to the County Jail of this Courty for a period of six months'.

On the trial, the warrant mentioned in the indictment and the complaint on which it was founded were introduced as evidence by the State, and exhibited to the jury. The warrant charged that 'Edward Loy on the 20th day of December, 1955, in said Hampshire County, did unlawfully operate a motor vehicle upon the public highways of said County while intoxicated and under the influence of intoxicating liquor, drugs or narcotics against the peace and dignity of the State'.

The pertinent part of the Code provision on which the indictment was based, 17C-5-2, as amended by Chapter 117, 1957 Acts of the Legislature, Regular Session, reads: '(a) It is unlawful and punishable as provided in paragraph (c) of this section for any person who is under the influence of intoxicating liquor to drive any vehicle on any highway of this state or for any owner of such vehicle to knowingly permit the same to be so operated by one under the influence of intoxicating liquor * * * (c) A person violating any provision of this section shall, for the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for a period of not less than twenty-four hours nor more than six months, and, in addition to such mandatory jail sentence, such person may be fined not less than fifty nor more than one hundred dollars * * *. A person violating any provision of this section shall, for the second offense, occurring within a five-year period, be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, which sentence shall not be subject to probation * * *'.

The defendant contends that the indictment on which he stands convicted is void, first, for the reason that the warrant is void, which the first conviction was founded was invalid, in that it charged distinct offenses in the disjunctive and, second, for the reason that it did not allege the date of the first violation. Defendant relies largely on language found in State v. Stollings, 128 W.Va. 483, 37 S.E.2d 98.

The holding in the Stollings case was: 'An indictment, charging the accused with the commission of several distinct offenses in the disjunctive, does not meet the requirements of West Virginia Constitution, Article III, Section 14, and is bad on demurrer.' There can be no doubt that the holding stated the principle of law as applied in this State. See State v. Keller, 118 W.Va. 296, 191 S.E. 253; State v. Dawson, 117 W.Va. 125, 184 S.E. 253; State v. Miller, 68 W.Va. 38, 69 S.E. 365; State v. Charlton, 11 W.Va. 332.

In the Stollings case the indictment charged that the defendant 'did unlawfully operate a motor vehicle upon a public road in said Lincoln County while intoxicated or under the influence of intoxication liquors, drugs or narcotics'. At the time of the return of the indictment in that case the applicable statute made it an offense to drive an automobile 'while intoxicated or under the influence of intoxicating liquor, drugs or narcotics'. Code, 17-8-25. The language of the applicable statute was the same at the time of the return of the indictment in the Keller case. In the Keller case the indictment charged that the defendant did 'drive and operate' an automobile while 'intoxicated and under the influence of intoxicating liquor drugs or narcotics'. As above noticed, at the time of the commission of the offense alleged in the indictment in the instant case, the statute defined the offense as driving while 'under the influence of intoxicating liquor'.

In the opinion in the Stollings case it was stated: '* * * It is noted that in the Keller case the warrant charged that defendant was 'intoxicated and under the influence of intoxicating liquors drugs or narcotics'. (Italics supplied). We disapprove the decision in that case in so far as it justifies the use of the disjunctive 'or' between the words 'drugs' and 'narcotics', for the reason that we do not feel justified in departing from the rule inherent in our criminal practice that indictments should not set forth in the disjunctive separate and distinct offenses * * *'. Apparently, though we think not justifiably so, the statement was made on the theory that the word 'or' appearing in the warrant between the word 'drugs' and the word 'narcotics' was an attempt to charge the commission of other or further offenses, and did not relate merely to the manner of the commission of the offense actually charged.

In State v. Dawson, supra [117 W.Va. 125, 184 S.E. 254], after citing authorities, Judge Kenna, speaking for the majority, said: 'These authorities sustain the proposition that, in an indictment, terms which are synonymous in the sense of being merely a repetitious explanation of what precedes may be separated by the word 'or' used in the sense of 'to wit". In State v. Michael, 141 W.Va. 1, 87 S.E.2d 595, 597, we held, part Point 8, Syllabus, that 'The words 'intoxicated' and 'under the influence of intoxicating liquor' are, in contemplation of law, synonymous'.

In the Keller case the Court reached the conclusion, we think correctly, that [118 W.Va. 296, 191 S.E. 102] 'The rule is that 'an indictment must not state the offense disjunctively, when it is thereby left uncertain what is really intended to be relied on as the accusation.' State v. Charlton, 11 W.Va. 332, 27 Am.Rep. 603. This lays down a rule of reason which it is safe to follow, and which does not prevent a court from holding an indictment bad where the disjunctive is used and where its use obscures and makes uncertain the accusation against the defendant'.

In 42 C.J.S. Indictments and Informations § 139(b), the general rule is stated thusly: 'Where a statute makes punishable various acts and mentions them disjunctively, an indictment charging the commission of two or more of such acts in one count must generally charge them conjunctively * * * Moreover, it has been stated that the better rule is that the use of the disjunctive is fatal only where uncertainty results, and not where one term is used as explaining or illustrating the other, or where the language of the statute makes either an attempt or procurement of an act, or the act itself in the alternative, indictable. It is sufficient to charge one or more of the acts stated disjunctively in the statute without alleging them all conjunctively.' See State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418; State v. Mason 141 W.Va. 217, 89 S.E.2d 425; State v. Jarrett, 119 W.Va. 432, 194 S.E. 1; 27 Am.Jur., Indictments and Informations, Section 127.

We are therefore of the opinion that the language found in the indictment, and in the warrant mentioned in the indictment in the instant case, clearly falls within the rule followed in this State, and sufficiently afforded the defendant notice of the offense for which he...