State v. Sprague

• Decision Date: 06 October 1931
• Docket Number: 6969.
• Citation: 161 S.E. 24,111 W.Va. 132
• Parties: STATE v. SPRAGUE.
• Court: West Virginia Supreme Court

161 S.E. 24

111 W.Va. 132

STATE v. SPRAGUE.

No. 6969.

Supreme Court of Appeals of West Virginia.

October 6, 1931

Submitted September 29, 1931.

Syllabus by the Court.

Indictment under statute which specifically makes intent element of offense defined must aver such intent.

Indictment for transporting intoxicating liquor, using term "unlawfully," but not alleging transportation with intent to violate prohibition laws, held insufficient (Code 1923, c. 32A, § 31a, as amended and re-enacted by Acts 1929, c. 64; Code 1931, 60-2-9).

An indictment predicated on a statute which specifically makes intent an element of the offense sought to be charged must aver the intent.

The use of the word "unlawfully" in an indictment for a statutory offense does not supply essential affirmative allegation of intent, where the statute specifically makes intent an element of the offense.

Error to Circuit Court, Pocahontas County.

George E. Sprague was convicted of transporting intoxicating liquors, and he brings error.

Judgment reversed, verdict set aside, demurrer to the indictment sustained, and the defendant discharged.

Jarrett & Wilson, of Lewisburg, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MAXWELL J.

The defendant was convicted of transporting intoxicating liquors from one point to another within the state, and a fine was imposed upon him. Upon this writ of error primary consideration must be given to the defendant's challenge of the sufficiency of the indictment, he having properly made his objections thereto in the trial court.

The indictment was returned in October, 1930, and alleged that the offense had been committed in June of that year. The indictment is framed as though predicated on section 31a chapter 32A, Code 1923. It negatives in detail the exceptions enumerated in that statute, and if that statute had been in effect at the time of the alleged offense there could be no sound objection to the sufficiency of the indictment; but by section 31a, chapter 64 of the Acts of the Legislature of 1929 the aforementioned section of the Code of 1923 was amended and re-enacted. The only basis for the prosecution, therefore, lies in the new enactment. Section 31a, chapter 64, Acts of 1929, does not contain the exceptions enumerated in the old statute and as negatived in the indictment. The new statute inhibits the transportation of intoxicating liquors "intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package or otherwise in violation of the prohibition laws of this state." The criticism of the indictment is based on the proposition that under this new statute it is necessary for the indictment to allege that the transporting of liquors was with the intention that the same were to be used in violation of the prohibition laws of this state, and that no such allegation is contained therein. The point is well taken. It is a time-honored, well established and reasonable rule of criminal pleading that an indictment predicated on a statute which specifically makes intent an element of the defined offense, must aver such intent. "Any intent, which the statute either by implication or expressly requires, must be averred." Bishop's New Criminal Procedure, vol. 2, § 523. "When a particular intent is made by statute a part of the definition of an offense, that intent must be alleged in the indictment and proved, or confessed, to warrant a conviction and sentence under the statute." Galeo v State, 107 Me. 474, 78 A. 867. "Where intent is made an essential element of any offense as defined by statute, by using the words 'with intent,' an indictment omitting these words will be defective." Hughes Criminal Law & Procedure, § 2740. To the same effect Wharton's Criminal Procedure, vol. 1 (10th Ed.) § 209; Joyce on Indictments, § § 326 and 375; 16 Corpus Juris, p 76; Bailey v. Commonwealth, 78 Va. 19. "In an indictment every fact necessary to constitute the crime intended to be charged must be directly and positively alleged." State v. Welch, 69 W.Va. 547, 72 S.E. 649.

Although the indictment contains the word "unlawfully," this does not supply the essential affirmative allegation of intent. Joyce on Indictments, § 375. No such indirect method of ac cusation will answer the exact requirements of pleading in criminal...