State v. Taylor

• Decision Date: 11 July 1986
• Docket Number: No. 16812,16812
• Citation: 346 S.E.2d 822,176 W.Va. 671
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Michael S. TAYLOR.

Page 822

346 S.E.2d 822

176 W.Va. 671

STATE of West Virginia v. Michael S. TAYLOR.

No. 16812.

Supreme Court of Appeals of West Virginia.

July 11, 1986.

Syllabus by the Court

1. W.Va.Code, 61-3-18, contains a series of offenses which relate to stolen property and, despite some commonality in the elements, the offenses are separate and distinct. The elements of transferring stolen property are: (1) the property must have been stolen by someone other than the accused; (2) the accused must have transferred the property knowing or having reason to believe that the property was stolen; (3) the property must have been transferred to someone other than the owner; and (4) the accused must have transferred the property with a dishonest purpose.

2. In an indictment for transferring stolen goods, it is not necessary to aver that the defendant obtained the goods from another person before he transferred them as this is not an element of the crime.

Susan B. Tucker, Pros. Atty., Morgantown, for appellant.

Larry Harrless, Morgantown, for appellee.

MILLER, Chief Justice:

We granted an appeal by the State of West Virginia in this case ¹ from a judgment of the Circuit Court of Monongalia County dismissing a two-count indictment charging the defendant, Michael S. Taylor, with transferring stolen goods in violation of W.Va.Code, 61-3-18. ² The trial court, upon the defendant's motion, dismissed the indictment on the theory that it failed to allege an essential element of the crime charged, i.e., that the defendant bought, received, or aided in the concealment of the stolen goods prior to his transfer of the goods to a person other than the owner. As we find the trial court's determination to be erroneous, we reverse and set aside the order dismissing the indictment and remand the case for further proceedings.

The first count of the indictment in question, after stating that certain described coins had been stolen from Kent and Catherine Harmon by a person unknown to the grand jurors, then charged that the defendant:

"MICHAEL S. TAYLOR, did then and there unlawfully and feloniously transfer the said goods and chattels to a person other than the owner, specifically, did transfer the said stolen goods and chattels to K.V. Seremetis, doing business as Acropolis Coins, 495 High Street, Morgantown, West Virginia, and the said MICHAEL S. TAYLOR, then and there well knowing or having reasonable cause to believe the said goods and chattels to have been unlawfully stolen, taken and carried away, as aforesaid, in violation of W.Va.Code, 61-3-18, against the peace and dignity of the State." ³

Without undertaking an extended discussion of our law on the sufficiency of indictments, we begin by observing that Article III, Section 14 of the West Virginia Constitution requires that in all trials of crimes and misdemeanors "the accused shall be fully and plainly informed of the character and cause of the accusation...." In recognition of this constitutional imperative, this Court held in Syllabus Point 1 of State ex rel. Hubbard v. Spillers, 157 W.Va. 522, 202 S.E.2d 180 (1974):

"An indictment purporting to charge an offense other than in the language of the statute must set forth all of the material facts and circumstances necessary to constitute the essential requisites of the offense and must fully and plainly inform the accused of the character and cause of the accusation against him."

Similarly, in Syllabus Point 1 of State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966), we held: "In order to lawfully charge an accused with a particular crime it is imperative that the essential elements of that crime be alleged in the indictment." See Syllabus Point 1, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976). ⁴

The trial court, in concluding that the offense of transferring stolen goods included the element that the defendant either previously bought, received, or aided in the concealment of stolen goods, apparently relied on Syllabus Point 6 of State v. Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982):

" 'The essential elements of the offense created by [ W.Va.Code, 61-3-18 [1931] ] are: (1) The property must have been previously stolen by some person other than the defendant; (2) the accused must have bought or received the property from another person or must have aided in concealing it; (3) he must have known, or had reason to believe, when he bought or received or aided in concealing the property, that it had been stolen; and (4) he must have bought or received or aided in concealing the property with a dishonest purpose.' State v. McGraw, 140 W.Va. 547, 550, 85 S.E.2d 849, 852 (1955)."

It should be noted that Syllabus Point 6 of Hall does not deal with the term "transfer." It utilizes language which suggests that there are several distinct offenses in W.Va.Code, 61-3-18, since it recognizes that for the crime of buying or receiving stolen goods, the statute requires that a defendant "must have bought or received the property from another person." Where the charge is aiding in concealing stolen property, it is not necessary that a defendant had bought or received the property from another person. In Hall, the indictment charged aiding in the concealment of stolen property and we said the "statute does not require that it be shown that the appellant received the stolen items, but rather that he aided in the concealment of the stolen property." 171 W.Va. at 221, 298 S.E.2d at 254.

Furthermore, Hall recognizes that there are common elements for each of the crimes since each requires that "[t]he property must have been previously stolen by some person other than the defendant" and that the defendant "must have known, or had reason to believe ... that [the property] had been stolen." Finally, the defendant must have committed the charged act "with a dishonest purpose." Syllabus Point 6, in part, State v. Hall, supra. ⁵

The use of the disjunctive "or" and the history of the statute support the view that W.Va.Code, 61-3-18, contains separate offenses. In State v. Smith, 98 W.Va. 185, 187, 126 S.E. 703, 704 (1925), the Court explained that this statute was taken from the Virginia Code of 1860, which made it a crime to buy or receive from another person, or aid in concealing, any stolen goods. The statute did not originally include the word "transfer." This term was added to the statute in connection with the 1931 recodification of that statute. According to the Revisers' Note at page 1921 of the 1931 Official Code of West Virginia, the statute was "broadened to include the transfer as well as the receipt of stolen goods."

A review of our case law construing and applying the statute does not reveal a case dealing with the transfer of stolen goods. However, State v. Manstoff, 118 W.Va. 214, 189 S.E. 698 (1937), supports the conclusion that W.Va.Code, 61-3-18, does cover separate offenses. The defendant in Manstoff was charged in count one of an indictment with buying and receiving meat having a value of $28.15, knowing it to have been stolen. Count two charged the defendant with aiding in the concealment of the same meat, with the same knowledge. The jury returned a guilty verdict only on count two of the indictment.

The defendant contended on appeal that the jury's guilty verdict on count two was an implied acquittal on count one, and that the verdicts were therefore inconsistent and the guilty verdict must fall. The Court rejected this argument that the verdicts were fatally inconsistent, stating:

"It is not perceived, however, that this [the implied acquittal on count one] can in any wise affect the validity of the verdict on the second count. The two offenses charged in the indictment were separate and distinct. As an illustration, the defendant might well have purchased and received the meat in question without any knowledge of its having been stolen; and yet, if he later learned that it had been stolen, the concealment of the same, or aid in its concealment, would have subjected him to the penalties prescribed by statute for concealing stolen property. 53 C.J. 507. We hold, on this point, that the verdict of the jury was properly sustained by the court." 118 W.Va. at 216, 189 S.E. at 699. (Emphasis added).

Manstoff sustains the proposition that the crime of concealing or aiding in concealing stolen property is a distinct and separate offense from that of buying or receiving stolen goods. ⁶

Each of the forbidden acts set forth in the statute is separated by the disjunctive "or," i.e., "buy or receive" or "aid in concealing" or "transfer." We have customarily stated "that where the disjunctive 'or' is used, it ordinarily connotes an alternative between the two clauses it connects." Albrecht v. State, 173 W.Va. 268, 271, 314 S.E.2d 859, 862 (1984), citing State v. Elder, 152 W.Va. 571, 577, 165 S.E.2d 108, 112 (1968).

The disjunctive language in this statute is similar to the wording of the driving while intoxicated statute discussed in State v. Stollings, 128 W.Va. 483, 37 S.E.2d 98 (1946). There, the defendant was indicted, in the words of the statute, for operating "a motor vehicle ... upon a public road ... while intoxicated or under the influence of intoxicating liquor, drugs, or narcotics," in violation of W.Va.Code, 17-8-25. 128 W.Va. at 484, 37 S.E.2d at 98. This Court, in discussing the indictment under that statute, stated:

"The instant indictment, in our opinion, sets forth four distinct statutory offenses, that is driving or operating any vehicle, motor driven or otherwise, upon any public road or street while (1) 'intoxicated'; (2) 'under the influence of intoxicating liquor'; (3) 'under the influence of drugs'; or (4) 'and under the influence of narcotics.' " 128 W.Va. at 487, 37 S.E.2d at 99.

Although Stollings was limited to some extent by State v. Loy, 146 W.Va. 308, 119 S.E.2d 826 (1961), which dealt with how an indictment should be framed when the statute contains separate offenses,...