State v. Voiers, 10236

• Citation: 61 S.E.2d 521,134 W.Va. 690
• Decision Date: 03 October 1950
• Docket Number: No. 10236,10236
• Court: Supreme Court of West Virginia
• Parties: STATE, v. VOIERS.

Page 521

61 S.E.2d 521

134 W.Va. 690

STATE, v. VOIERS.

No. 10236.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1950.

Decided Oct. 3, 1950.

Syllabus by the Court

1. Under the Act of the Legislature of this State revising, arranging and consolidating into a Code the general statutes of this State, subject to such limitations and exceptions as are provided in Chapter 63 of said Act, and to repeal all Acts and parts of Acts of a general nature in force immediately before such enactment, Sections 1 and 2 of Article 20, Chapter 19, of the Code, constitute the statute law of this State on the subject of the classification of dogs as property and their taxation.

2. 'Any dog above the age of eight months shall be subject to taxation and shall be and is hereby declared to be personal property within the meaning and construction of the laws of West Virginia.' Code, 19-20-1.

3. Code, 19-20-2, providing for a head tax on dogs and authorizing the owner of any dog over the age of eight months to have the same assessed as other personal property as a prerequisite to the enforcement of the provisions of Section 5 of said Article, should not be construed as affecting the property status of a dog above the age of eight months, as the same is defined by Section 1 of Article 20 of Chapter 19 of the Code.

4. The verdict of a jury returned on evidence and circumstances, on the application of which men of different minds might reasonably disagree, will not, in the absence of other error, be disturbed by this Court unless plainly wrong, or without any evidence to support it.

James E. Maroney, Cabin Creek, Breckinridge & Brown, John B. Breckinridge, and B. P. Brown, all of Summersville, for plaintiff in error.

William C. Marland, Atty. Gen. Thomas J. Gillooly, Asst. Atty. Gen., for defendant in error.

FOX, Judge.

At the August Term, 1949, of the Circuit Court of Nicholas County, the grand jury of said county attending on said court returned an indictment for grand larceny against one Thomas Voiers, charging him with the theft of one female collie dog, above the age of eight months, of the value of $100.00, and further charging that the said dog had been assessed for taxation by the assessor of said county prior to the finding of the indictment. A demurrer to the indictment was overruled, whereupon a plea of not guilty was entered by the defendant and trial before a jury had, resulting in a verdict finding the defendant guilty of petit larceny as charged in the indictment. A motion to set aside said verdict was overruled, and the judgment of the court was that defendant serve a term of ninety days in the county jail of Nicholas County and pay the costs of the prosecution. On December 5, 1949, we granted this writ of error to the judgment aforesaid.

There is no statutory definition of the offense of larceny. It is a common law offense and various attempts have been made to define same. One definition is that 'Larceny, at common law, is the taking and carrying away, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with intent to deprive such owner permanently of his property therein.' Clark's Criminal Law 241. Other definitions are: 'The felonious taking and carrying away of the personal goods of another. 4 B1. Comm. 229. The unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same. 4 Stephen Comm. 152. The felonious taking the property of another without his consent and against his will, with intent to convert it to the use of the taker. Hammon's Case, 2 Leach 1089.' Black's Law Dictionary, 3d Ed., 1070. All of these definitions assume that the thing taken must be personal property in one form or another.

It is conceded that at common law a dog could not be the subject of larceny, and this Court has so held. State v. Blake, 95 W.Va. 467, 121 S.E. 488; State v. Arbogast, W.Va. 57 S.E.2d 715. However, by Code, 19-20-1, it is provided:

'Any dog above the age of eight months shall be subject to taxation and shall be and is hereby declared to be personal property within the meaning and construction of the laws of West Virginia.'

It is upon this provision of the statute, and upon the general common law rule covering larceny that the State seeks to maintain the conviction, judgment and sentence aforesaid. The sentence of imprisonment imposed is authorized by Code, 61-3-13.

In our opinion, four material questions and presented: (1) Was Code, 19-20-1 and 2, legally enacted by Chapter 83, Acts of the Legislature, 1925, which Act, with certain immaterial amendments as to form, was incorporated in the Code of 1931; (2) whether under said statute, now incorporated in the Code, a dog above the age of eight months can be the subject of larceny, irrespective of the payment of taxes in any form; (3) was error committed by the trial court as regards the admission of evidence and the giving of instructions during the trial; and (4) was the evidence sufficient to sustain the conviction under attack? These several questions will be considered in the order stated.

As to the first question, it is contended that Chapter 83, Acts of the Legislature, 1925, is not and has never been law because the title thereof was imperfect, in that it included more than one object, and therefore invalid under the provisions of Section 30, Article VI of the Constitution of this State which provides that:

'No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shal be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed, and no law shall be revised, or amended, by reference to its title only; but the law revived, or the section amended, shall be inserted at large, in the new act. * * *'

The title to Chapter 83, aforesaid, reads as follows:

'An Act for the protection of sheep, lambs, goats, kids and other property and providing compensation to the owner for the destruction, loss or injury by dogs for any sheep, lambs, goats, kids and other property and providing for damages to persons, by dogs, and also providing for taxation and protection of dogs and making dogs property and fixing punishment for any violation of this act.'

It is clear, of course, that the title of the Act does cover the subjects of making dogs personal property and their taxation, although it does include other objects and purposes.

The question has been before this Court in many forms, and there has been a variety of opinions thereon. Early in the history of this State, it was held in Shields and Preston v. Bennett, Auditor, 8 W.Va. 74, that:

'The provision in the Constitution of this State, (Art. 6, sec., 30) that no law shall embrace more than one object, as qualified by the provision in the same section, that if any object shall be embraced in an act which is not expressed in the title, the act shall be void only as to so much thereof as shall not be so expressed, does not invalidate an act containing more than one object, when the objects are expressed in the title.'

We think this has been the consistent holding of this Court up to the present day. The purpose of the constitutional provision aforesaid was to require the title of an Act to contain a statement of the objects and purposes of a proposed enactment, so that there could not be incorporated in the body of the Act legislation to which there was no index in the title. If the objects of proposed legislation are clearly stated in the title, it serves the purpose which the framers of the Constitution evidently had in mind when they proposed Section 30 of Article VI. It is our opinion, therefore, that Chapter 83, Acts of the Legislature, 1925, was legally enacted and was effective as law from the date when the same went into effect. But, if there could be any doubt on this question, the same is removed by the further fact that Chapter 83 of the Acts of the Legislature, 1925, was later rewritten to some extent and incorporated in the Code of 1931. Article 20 of Chapter 19 of the Code now contains thirteen sections on the subject of dogs substantially as had been enacted by Chapter 83, Acts of the Legislature, 1925, and Chapter 13, Acts of the Legislature, 1929. Certain changes in said statutes were made in the drafting of the Code, but it is stated by the revisers that the article restores the law as contained in the Acts of 1925, Chapter 83, and the Acts of 1925, Chapter 13, Sections 49 to 52, inclusive.

The Code of 1931 was adopted by an Act of the Legislature of this State, the title to which reads:

'An Act To revise, arrange and consolidate into a Code the general statutes of the State of West Virginia, and to repeal all acts and parts of acts of a general nature in force on the thirty-first day of December, nineteen hundred and thirty, subject to such limitations and exceptions as are provided in chapter sixty-three of this Code.'

The title of the Act is followed by the enacting clause which reads:

'Be it enacted by the Legislature of West Virginia: That the laws embraced in the following chapters, articles and sections, shall constitute the 'Code of West Virginia' and shall be so designated and cited'.

Chapter 63, Article 1, of the Code, makes said Code effective on January 1, 1931, and expressly repeals all general statutes in effect on the preceding day, except as are otherwise provided in said article, and then details the exceptions to the general repeal mentioned above. Undoubtedly, Chapter 83, Acts of the Legislature, 1925, was treated as being in force and effect immediately prior to the adoption of the Code of 1931. There was only one general object mentioned in the enactment creating the Code, and that was to codify and enact the general statutes of the State, and to repeal and make ineffective all statutes theretofore existing except...