State v. Pearis

• Decision Date: 21 November 1891
• Citation: 35 W.Va. 320
• Court: West Virginia Supreme Court
• Parties: State v. Pearis

35 W.Va. 320

State

v. Pearis

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1891.

Decided November 21, 1891.

1. Criminal Proceedings Indictment.

The latter clause of section 10, c. 5, Code, reads: "And if any person, whether a candidate or not, offer, give, or distribute any intoxicating drink to any voter on the day of an election, he shall forfeit not less than ten, nor more than fifty, dollars." Held that, in an indictment based on this section of the statute, it being charged that the person to whom the intoxicating drink was given was a legally qualified voter, it is not necessary to state the facts constituting such person a qualified voter.

2. Criminal Proceedings Indictment Scienter.

In such indictment it is not necessary to allege any special criminal intent, but the scienter, or general criminal intent, that is, that the accused knowingly and wilfully did the unlawful act, is sufficient,

3. Criminal Proceedings Special Jury.

The offence here charged, being a misdemeanor, is not within the meaning of the term "civil case," as used in section 21, c. 110, Code, and therefore the accusediwas not entitled to a special jury.

4. Criminal Proceedings Challenge.

But under section 17, c. 116, the accused was entitled to challenge four jurors peremptorily, and this having been refused, the judgment and verdict are set aside, and a new trial is awarded.

D. E. Johnston for plaintiff in error, cited Code, c. 5, s. 10; 1 Bish, Crim. Pro. § 627; 1 Snead 63; Code, c. 116, s. 17; 15 W. Va. 362; 1 Bish. Crim. L. § 247.

Attorney-General Alfred Caldwell for the State, cited 15 W. Va 364; 31 W. Va. 124; 30 Am. Rep. 617; 98 Mass. 6; 41 N. J. Law 552; 47 Ark. 109; 63 Ind. 551; 138 Mass. 492; Id. 511; 88 Ind. 145; 23 Minn. 549; 35 Mo. App. 475; 57 Conn. 173; 12 111. App. 200; 36 Ark. 58; 38 Am. Rep. 24; 37 Ark. 108; Id. 399; 27 Minn. 153; 92 111. 400; 49 la. 650; 43 la, 282; 6 Bush 400; 24 Wis. 60; 69 111. 523; 77 Ill. 322; 69 111. 601; 50 Ind. 22.

Holt, Judge:

On the 12th of March, 1889, the grand jury of the Circuit Court of Mercer county found an indictment against George W. Pearis, founded on the latter clause of section 10, c. 5, Code (2d Ed) 1891, p. 95. The whole section is as follows:

"If any person who is a candidate for any office under the constitution and laws of this State shall, himself or by another, offer to give or distribute among the voters any intoxicating drink on the day of the election, he shall, if elected, forfeit his office, and on proof of the fact be removed therefrom; and if any person, whether a candidate or not, offer, give, or distribute any intoxicating drink to any voter on the day of an election, he shall forfeit not less than ten, nor more than fifty, dollars."

The indictment was demurred to, and the demurrer was overruled. This is one of the errors complained of, audI give the indictment in full:,

"State of West Virginia, Mercer county, to wit: The grand jurors of the State of West Virginia, in and for the body of the county of Mercer, upon their oaths present that on the 6th day of November, 1888, in the said county of Mercer and State of West Virginia, at an election then and there held in said county for the election of State, county, and district officers, under the laws of the State of West Virginia, George W. Pearis did then and there, to wit, in the said county of Mercer, on the 6th day of November, 1888, wilfully, wrongfully, knowingly, and unlawfully give to one Joseph R. Johnston an intoxicating drink, the said Joseph R. Johnston being then and there a legally qualified voter, against the peace and dignity of the State. J. W. Hale, Prosecuting Attorney. Found upon the evidence of Joseph R. Johnston.

It is alleged on the part of defendant that this indictment is bad, because, in averring that Joseph R. Johnston is a qualified voter, it charges only the legal result of certain facts, whereas it should charge the facts out of which the legal result arises, that is, the facts showing that Johnston was a qualified voter; and that it fails to charge the wrongful or criminal intent, without which the offence does not exist.

In this offence no special criminal intent is necessary. All that is needed is the averment of the scienter the general criminal intent and that this indictment contains "wilfully" and "knowingly" did the act which the statute forbids; and the defendant being conclusively presumed to know the law, the only criminal intent needed is both alleged and proved.

As to the other objection, this indictment follows the language of the statute in describing the offence, and, in alleging that it was committed, fully, directly and expressly states without any uncertainty or ambiguity all the essential facts of time, place, person and other circumstances, so as to fix...