State v. Price

• Decision Date: 21 February 1922
• Docket Number: 4374.
• Citation: 110 S.E. 819,90 W.Va. 365
• Parties: STATE v. PRICE.
• Court: West Virginia Supreme Court

110 S.E. 819

90 W.Va. 365

STATE v. PRICE.

No. 4374.

Supreme Court of Appeals of West Virginia.

February 21, 1922

Submitted February 14, 1922.

Syllabus by the Court.

An indictment for a misdemeanor which alleges two possible but repugnant dates as the time of the commission of the offense by one of which, if correct, the offense would be barred, is bad on demurrer, and should on motion of the accused be quashed. Such defect in the indictment is not cured by section 10 of chapter 158 (sec. 5559) of the Code.

Error to Circuit Court, Calhoun County.

Arch Price was convicted of assault, and he brings error. Reversed, and defendant discharged.

Geo. F Cunningham, of Spencer, for plaintiff in error.

E. T England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen for the State.

MILLER J.

The indictment alleges that the grand jurors "upon their oaths present that Arch Price, on the ______day of______, 1917, and within one year next preceding the finding of this indictment, * * * in and upon one Ernest McCoy, an assault did make," etc.

The errors assigned are that the court below should have sustained defendant's demurrer to and motion to quash the indictment, and also his motion in arrest of judgment.

The record of the indictment shows that it was found and returned on the 20th day of April, 1920. The Attorney General says in his brief that the evidence showed that the offense was committed January 30, 1920. The evidence was not certified; but the trial court by bill of exceptions certified, "that the State, through her prosecuting attorney, relied in said case upon an assault and battery claimed to have been committed by the defendant upon the said Ernest McCoy, on the 30th day of January, 1920." But we think the question of fact is not material on the present hearing. To constitute the basis of any conviction, it was necessary that the indictment should have charged an offense not barred and punishable under the statute.

Section 10 of chapter 152 (sec. 5467) of our Code says:

"A prosecution for a misdemeanor shall be commenced within one year next after there was cause therefor."

The indictment, as we have seen, charges, first, that the offense was committed on the _______day of_______, 1917; if so, it was barred, and the motion to quash should have been sustained. In other words, no offense punishable under the statute was alleged; it was barred by limitation. But it is urged that the indictment also charges that the offense was committed within one year next preceding the finding of the indictment; and that the defect in the statement of time is cured by section 10 of chapter 158 (sec. 5559) of the Code. It provides:

"No indictment or other accusation shall be quashed or deemed invalid * * * for omitting to state, or stating imperfectly, the time at which the offense was committed, when time is not of the essence of the offense."

But in indictments for misdemeanors, is not the time of the commission thereof of the very essence of the crime? In our case of State v. Bruce, 26 W.Va. 153, it was said:

"In misdemeanors it is essential that it should appear from the indictment, that the offense was not barred by the statute of limitations at the time the indictment was found."

And we held in State v. Davis, 68 W.Va. 184, 69 S.E. 644, that an indictment against a druggist for the sale of intoxicating liquors was not bad for not specifying the day of the sale, when it is alleged that it was within one year before the finding of the indictment. In State v. Farley, 78 W.Va. 471, 89 S.E. 738, it was said that although the indictment charges the offense to have been committed within one year, yet if the proof adduced places the violation beyond the period of limitation, an acquittal would necessarily follow.

Is the manifest defect in the indictment in this case cured by the statute? The courts generally, with our decisions, hold that if in such case an indictment states in general language that the offense was committed within the statutory period, it need not state the exact date. Shiflett v. Commonwealth, 114 Va. 876, 77 S.E. 606; Dix v. Commonwealth, 110 Va. 907, 67 S.E. 344; Jones v. Commonwealth, 1 Bush (Ky.) 34, 89 Am. Dec. 605. And it is held that--

"Where two dates appear in an indictment, one of which is impossible and apparently a clerical error, the indictment will not be invalidated." 14 R. C. L. p. 180, § 26.

Does the present indictment fall under these rules? We think not. It first charges the offense to have been committed in the year 1917, a possible date; but if then, it would be barred by the statute. It also charges that it was within one year prior to the finding of the indictment, also a possible date. But to which of these allegations as to time was the defendant to look in making his defense? Which, if either should he reject and treat as surplusage? In Mullins v....