State v. Wade

• Decision Date: 28 February 1985
• Docket Number: No. 16398,16398
• Parties: STATE of West Virginia v. Robert Lee WADE.
• Court: West Virginia Supreme Court

Page 142

327 S.E.2d 142

174 W.Va. 381

STATE of West Virginia v. Robert Lee WADE.

No. 16398.

Supreme Court of Appeals of

West Virginia.

Feb. 28, 1985.

Syllabus by the Court

1. A "lawfully administered" oath or affirmation is an essential element of the crimes of perjury, W.Va.Code, 61-5-1 [1931], and false swearing, W.Va.Code, 61-5-2 [1931]; and a "lawfully administered" oath or affirmation, as that phrase is used in W.Va.Code, 61-5-1 [1931], and W.Va.Code, 61-5-2 [1931], is an oath or affirmation authorized by law and taken before or administered by a tribunal, officer or person authorized by law to administer such oaths or affirmations.

2. As a general rule, under W.Va.R.Crim.P. 7(c)(1), the body, charge or accusation contained in an information is to be judged by the same standards that determine the sufficiency of the body, charge or accusation of an indictment.

3. "An indictment [or information] for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syl. pt. 3, State v. Hall, W.Va., 304 S.E.2d 43 (1983).

4. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

5. " 'In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged.' Syl. pt. 4, State v. Pendry, W.Va. , 227 S.E.2d 210 (1976) [ overruled, in part, on other grounds, Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 173, 241 S.E.2d 914, 916, cert. denied, 439 U.S. 830, 993 S.Ct. 107, 58 L.Ed.2d 125 (1978) ]." Syl. pt. 5, State v. Hodges, W.Va., 305 S.E.2d 278 (1983).

Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

Robert H. McWilliams, Public Defender Corp., Second Judicial Circuit, Moundsville, for appellant.

McHUGH, Justice:

This case is before this Court upon the appeal of Robert Lee Wade, the appellant and defendant below, from two misdemeanor convictions in the Circuit Court of Marshall County for false swearing in violation of W.Va.Code, 61-5-2 [1931]. As a result, the appellant was sentenced to two concurrent terms of eight months in the county jail.

On August 9, 1983, the appellant was on work-release from the Marshall County jail where he was serving a sentence upon a conviction of larceny. The appellant was accused of having violated the conditions of his work-release program by going to an area of the county for which he did not have authorization.

The county prosecutor instituted proceedings in the Circuit Court of Marshall County to revoke the appellant's work-release privileges. At the hearing, the prosecution presented the testimony of a Moundsville police officer who stated that he observed the appellant riding a motorcycle in an area known as Taylor's Ridge shortly after 3 p.m. on August 9, 1983. The officer testified that he reported the sighting to the county jail at approximately 3:15 p.m. Another police officer testified that upon inquiry later in the day, the appellant admitted his presence on Taylor's Ridge that afternoon. The prosecution also presented the testimony of the director and an instructor of the organization where the appellant was receiving welding instruction as part of his work-release program. Both witnesses testified that they did not see the appellant during instruction that afternoon and that the appellant admitted to them the next day that he was present on Taylor's Ridge riding a motorcycle at the time in question. In his testimony, the appellant denied that he was riding a motorcycle that day on Taylor's Ridge and further stated that he did not leave his work-release instruction until sometime between 3:10 p.m. and 3:30 p.m. on the day in question. Those responses formed the basis of the two false swearing charges in an information filed by the prosecuting attorney. At the jury trial on the false swearing charges, the State introduced into evidence through the testimony of the prosecuting attorney the transcript of the work-release revocation hearing.

I

The main thrust of this appeal relates to the essential elements of the crime of false swearing under W.Va.Code, 61-5-2 [1931], and the sufficiency of the information. W.Va.Code, 61-5-2 [1931], provides:

To wilfully swear falsely, under oath or affirmation lawfully administered, in a trial of the witness or any other person for a felony, concerning a matter or thing not material, and on any occasion other than a trial for a felony, concerning any matter or thing material or not material, or to procure another person to do so, is false swearing and is a misdemeanor. ¹

The appellant asserts that the information is insufficient because it failed to allege that the appellant's oath was "lawfully administered" and the legal authority of the person who administered such oath.

At common law, false swearing was considered to be a lesser included offense of the crime of perjury. See generally R. Perkins, Perkins on Criminal Law 454 (1969); State v. Crowder, 146 W.Va. 810, 123 S.E.2d 42 (1961); 70 C.J.S. Perjury § 1 (Cum.Supp.1984). As this Court noted in Crowder, "[e]ven though perjury and false swearing are separate and distinct offenses in the technical or legal sense for purposes of prosecution, both at common law and under the statutes of the various states, they are related, and in a popular meaning, sometimes considered synonymous." 146 W.Va. at 828, 123 S.E.2d at 53. Perjury is defined in W.Va.Code, 61-5-1 [1931], as follows: "To wilfully testify falsely, under an oath or affirmation lawfully administered, in a trial of the witness or any other person for a felony, concerning a material matter or thing, is perjury and is a felony...." As a result, our statutes defining the crimes of perjury and false swearing are to be read in pari materia. Id., 123 S.E.2d at 54; see State v. Justice, 130 W.Va. 662, 44 S.E.2d 859 (1947), cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L.Ed. 1128 (1948).

It is well accepted that the oath or affirmation of the declarant must be "lawfully administered" in order to be guilty of perjury or false swearing.

Except for the very limited area of the declaration 'under the penalties of perjury,' there can be no conviction of this offense unless a lawful oath or affirmation had been duly administered to the defendant by one authorized to do so, and there can be no such authority unless the particular oath or affirmation is one required or authorized by law.

Perkins, supra at 457 (footnotes omitted). See also United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92, 96-97 (1953); Commonwealth v. Russo, 177 Pa.Super. 470, 484, 111 A.2d 359, 365 (1955).

It is, therefore, clear that a "lawfully administered" oath or affirmation is an essential element of the crimes of perjury, W.Va.Code, 61-5-1 [1931], and false swearing, W.Va.Code, 61-5-2 [1931]; and a "lawfully administered" oath or affirmation, as that phrase is used in W.Va.Code, 61-5-1 [1931], and W.Va.Code, 61-5-2 [1931], is an oath or affirmation authorized by law and taken before or administered by a tribunal, officer or person authorized by law to administer such oaths or affirmations.

We now turn to the sufficiency of the information. Both counts of the information charged the appellant as follows:

That on or about the 15th day of August, 1983, in the County of Marshall, State of West Virginia, Robert Lee Wade, committed the offense of 'false swearing' by wilfully, knowingly and absolutely giving material false testimony under oath before the Circuit Court of said county, which he did not believe and knew to be untrue....

Count one of the information continued by setting forth the appellant's testimony from his work-release revocation hearing wherein the appellant testified that he did not leave his welding instruction until "somewhere between ten after three or 3:30." Count two of the information continued by quoting the appellant's testimony at the same hearing wherein the appellant specifically denied being on Taylor's Ridge during the afternoon in question or riding a motorcycle that day. Both counts contain a citation to W.Va.Code, 61-5-2 [1931].

Article III, section 14 of the Constitution of West Virginia provides, in part, that in "[t]rials of crimes, and misdemeanors, * * * the accused shall be fully and plainly informed of the character and cause of the accusation...." Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure implements the requirements of this constitutional provision. ² See generally 1 C. Wright, Federal Practice and Procedure Criminal 2d § 125 (Supp.1983). With respect to the nature and contents of the charge contained in an indictment and information, Rule 7(c)(1) provides, in pertinent part: "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

As a general rule, under W.Va.R.Crim.P. 7(c)(1), the body, charge or accusation contained in an information is to be judged by the same standards that determine the sufficiency of the body, charge or accusation of an indictment. See Spratlin v. Solem, 577 F.2d 56, 59 (8th Cir.1978); Drown v. United States, 198 F.2d 999, 1005 (9th Cir.1952), cert. denied, 344 U.S. 920, 73 S.Ct. 385, 97 L.Ed. 709 (1953); Corson v. United States, 147 F.2d 437 (9th Cir.1944); Powers v. United States, 128 F.2d 300, 301 (D.C.Cir.1942); Geoates v. State, 206 Ark. 654, 176 S.W.2d 919 (1944); State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947). See generally 42 C.J.S. Indictments and Informations § 81 (Cum.Supp.1984).

We have held that "[a]n...