State v. Mason, 821

• Decision Date: 25 October 1955
• Docket Number: No. 821,821
• Citation: 89 S.E.2d 425,141 W.Va. 217
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, v. Chester W. MASON. C. C.

Page 425

89 S.E.2d 425

141 W.Va. 217

STATE of West Virginia, v. Chester W. MASON.

C. C. No. 821.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1955.

Decided Oct. 25, 1955.

Syllabus by the Court.

1. An act of the Legislature which repeals and simultaneously re-enacts a statute relating to a specific offense does not interrupt the continuous force of such statute, and an indictment thereunder may validly charge a 'second offense', even though the conviction of the alleged 'first offense' occurred prior to such repeal and re-enactment.

2. The offense of being in 'actual physical control' of a vehicle while under the influence of intoxicating liquor is not the same as 'driving' a vehicle while under the influence of intoxicating liquor, and will not constitute a second offense of 'driving' a vehicle while under the influence of intoxicating liquor where the conviction of the alleged first offense was had under a statute which, prior to its repeal and re-enactment, did not make such 'actual physical control' an offense.

3. 'One good count in an indictment containing several counts relating to one and the same transaction will support a general conviction. The same rule applies whether there was a general demurrer to the indictment, or a demurrer to each separate count thereof.' Pt. 2., Syl., State v. Johnson, 111 W.Va. 653, 164 S.E. 31.

John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for plaintiff.

I. Raymond Murphy, Dayton R. Stemple, Philippi, for defendant.

BROWNING, Judge.

Chester W. Mason, hereinafter designated as defendant, was indicted by the Grand Jury attending the January, 1955, term of the Circuit Court of Taylor County in the following words and figures:

'The Grand Jurors of the State of West Virginia, in and for the body of the County of Taylor, and now attending the said Court, upon their oaths present that heretofore on the 9th day of November, 1950, Chester W. Mason was tried and convicted upon his, the said Chester W. Mason, plea of guilty before Ona C. Jefferys, a duly qualified and acting Justice of the Peace of Grafton District, Taylor County, West Virginia, upon a lawful warrant, duly issued by the said Justice, charging the said Chester W. Mason with having unlawfully driven and operating a motor vehicle upon a street and highway, in the said county and state, while he, the said Chester W. Mason, was then and there intoxicated and under the influence of intoxicating liquors and was thereupon fined the sum of $50.00, which fine was paid on the 9th day of November, 1950, against the peace and dignity of the State.

'And the Grand Jurors aforesaid, upon their oaths as aforesaid, further present that Chester W. Mason, on the ___ day of November, 1954, and within one year preceding this finding, in the said County of Taylor, did unlawfully, drive and operate a motor vehicle upon a public street and highway, commonly known as Latrobe Street, in the county and state aforesaid, while he, the said Chester W. Mason, was then and there intoxicated and under the influence of intoxicating liquors against the peace and dignity of the State.

'Second Count: And the Grand Jurors aforesaid, upon their oaths as aforesaid, further present that heretofore on the 9th day of November, 1950, Chester W. Mason was tried and convicted upon his, the said Chester W. Mason, plea of guilty before Ona C. Jefferys, a duly qualified and acting Justice of the Peace of Grafton District, Taylor County, West Virginia, upon a lawful warrant, duly issued by the said Justice, charging the said Chester W. Mason with having unlawfully driven and operating a motor vehicle upon a street and highway, in the said county and state, while he, the said Chester W. Mason, was then and there intoxicated and under the influence of intoxicating liquors and was thereupon fined the sum of $50.00, which fine was paid on the 9th day of November, 1950, against the peace and dignity of the State.

'And the Grand Jurors aforesaid, upon their oaths as aforesaid, further present that Chester W. Mason, on the ___ day of November, 1954, and within one year preceding this finding, in the said County of Taylor, was in actual physical control of a motor vehicle on a public street and highway, commonly known as Latrobe Street, in the county and state aforesaid, while he, the said Chester W. Mason, was then and there intoxicated and under the influence of intoxicating liquors against the peace and dignity of the State.'

Defendant demurred to and moved to quash the indictment on the principal grounds: That, inasmuch as the Legislature, in 1951, had repealed the statute under which defendant was convicted in November, 1950, and enacted a new statute, effective July 1, 1951, the prior conviction could not serve as a basis on which he may be convicted of a second offense; and that the new act sets out two separate offenses, only one of which constituted an offense under the old statute.

The court overruled defendant's demurrer and motion to quash, and, on joint application of the State and the defendant, certified the questions raised thereby to this Court. Briefly, the questions are these: (1) Does the indictment sufficiently charge a crime under the present statute?; (2) Does the indictment validly charge a second offense, the conviction of the first offense allegedly occurring prior to July 1, 1951?; (3) Does a charge that a person, while under the influence of intoxicating liquor, was 'in actual physical control' of a vehicle constitute a second offense when the alleged first offense was that 'driving' a vehicle while under the influence of intoxicating liquor?; (4) Is an indictment charging 'actual physical control', while under the influence of intoxicating liquor, sufficient without further alleging facts which constitute 'actual physical control'?; (5) What constitutes 'actual physical control'?; and (6) Are the offenses of 'driving' and 'actual physical control' distinct and separate offenses?

The pertinent statutory provisions are: Code, 17-8-25, as amended: '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; nor shall the owner of such vehicle, knowingly permit the same to be so operated by one intoxicated, or under the influence of intoxicating liquor, drugs or narcotics. * * *'

Chapter 129, Acts of the Legislature, Regular Session, 1951, 'repealed' Article 8 of Chapter 17 of the Code, and 'amended' it by designating three new chapters pertaining to motor vehicles. Chapter 17C-5-2 provided:

'(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 or be in actual physical control of 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.

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'(c) * * * A person violating any provision of this section shall, for the second offense, * * *.'

Subsection (a) of 17C-5-2 was amended by Chapter 113, Acts of the Legislature, Regular Session, 1955, by deleting after the word 'drive' the words 'or be in actual physical control of.' The amendment was effective from passage, February 24, 1955, approximately one month subsequent to the date when this indictment was returned by the Taylor County Grand Jury.

The defendant contends that, by the repeal of Article 8, Chapter 17, of the Code, as amended by the Legislature at its 1951 Session, both counts of this indictment are invalid and demurrable, inasmuch as the first conviction in 1950 cannot, after the repeal, even be used against the defendant to constitute a second offense of driving a vehicle while under the influence of intoxicating liquor...