State v. Viquesney

• Decision Date: 15 March 1927
• Docket Number: (No. 5611.)
• Citation: 137 S.E. 538
• Parties: STATE. v. VIQUESNEY.
• Court: West Virginia Supreme Court

137 S.E. 538

STATE.

v.VIQUESNEY.

(No. 5611.)

Supreme Court of Appeals of West Virginia.

March 15, 1927.

(Syllabus by the Court.)

Error to Circuit Court, Barbour County.

J. A, Viquesney was convicted of uttering a forged note, and he brings error. Reversed, and indictment quashed.

Ira E. Robinson, of Grafton, and J. Blackburn Ware and Wm. T. George, both of Philippi, for plaintiff in error.

Howard B. Lee, Atty. Gen., and J. Luther Wolfe, Asst. Atty. Gen., for the State.

HATCHER, P. The defendant was impleaded in the circuit court of Barbour county, upon an indictment which contained two counts. The first count charged him with forging a certain promissory note, and the second count with uttering the note. Beforethe trial the defendant moved to quash the indictment, and each count thereof, and also demurred to the same, both of which motions the. court overruled. Later, during the trial, the court struck out the first count, and the defendant was found guilty under the second.

The forgery of the note is not alleged in positive and direct terms in the second count, but appears only by intendment and recital. For this reason the defendant contends that the count is fatally defective, citing among other authorities State v. Welch, 69 W. Va. 547, 72 S. E. 649, which holds:

"In an indictment every fact necessary to constitute the crime intended to be charged must be directly and positively alleged."

Direct and positive allegation of every material fact is uniformly demanded by text-writers and courts of highest authority. To that requirement is usually added this inhibition: The facts necessary to constitute the crime cannot be alleged by intendment or recital. A complete statement of the rule, as made by the Supreme Court of the United States is as follows:

"The general and, with few exceptions, * * * the universal rule, on this subject, is, that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment, or implication, and the charge must be made directly and not inferentially, or by way of recital." U. S. v. Hess, 124 U. S. 483, 486, 8 S. Ct. 571, 573, 31 L. Ed. 516.

See Joyce on Indictments, § 246; 10 Ency. PL & Pr. 473; 14 R. C. L. § 23, p. 173; 31 C. J. § 179, p. 659; 12 Stand. Ency. Pro. 321.

Under section 5, c. 146, Code, three elements enter into the offense attempted to be charged in the second count: (a) The writing must be forged; (b) the accused must utter or attempt to employ as true the forged writing; and' (...