State v. Whittington
Decision Date | 17 November 1981 |
Docket Number | No. 14784,14784 |
Citation | 284 S.E.2d 363,168 W.Va. 288 |
Parties | STATE of West Virginia v. Lemuel WHITTINGTON. |
Court | West Virginia Supreme Court |
Syllabus by the Court
"An act of the Legislature which repeals and simultaneously re-enacts a statute relating to a specific offense does not interrupt the continuous force of such statute...." Syl. pt. 3, in part, State ex rel. Betts v. Scott, W.Va., 267 S.E.2d 173 (1980), citing, Syl. pt. 1, in part, State v. Mason, 141 W.Va. 217, 89 S.E.2d 425 (1955).
Michael T. Clifford and Leo Catsonis, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Thomas N. Trent and James V. Cann, Asst. Attys. Gen., Charleston, for defendant in error.
Appellant Lemuel Whittington was convicted in the Circuit Court of Nicholas County upon an indictment which charged him with driving a motor vehicle "while ... under the influence of intoxicating liquors." Prior to the appellant's arrest and conviction, W.Va.Code, 17C-5-2(a) [1966] made it illegal "for any person who is under the influence of intoxicating liquor" to drive. However, this statute was amended effective May 30, 1976, to provide that it is "unlawful ... for any person to drive ... while ... under the influence of alcohol...." Appellant contends that: (1) his conviction is void because he was convicted of a crime which did not exist on January 4, 1979, the date of his conviction, and (2) his conviction should be reversed because the conduct of the trial court denied him due process of law. For the reasons set forth below, we disagree and affirm the conviction.
With respect to his first assignment of error, appellant relies principally upon State v. Thomas, W.Va., 253 S.E.2d 554 (1979), a per curiam opinion in which Lawrence Thomas was convicted of driving under the influence of intoxicating liquor after the statute had been amended to change the word "liquor" to "alcohol." Mr. Thomas contended that he had been convicted of a statutory crime which did not exist at the time of its alleged commission. The State confessed error and we reversed and set aside the verdict.
The appellant argues that the facts of his case are identical to those in Thomas and that his conviction should be reversed by virtue of the result reached in that case. We disagree.
In State ex rel. Betts v. Scott, W.Va., 267 S.E.2d 173 (1980), we dealt with this issue 1 in a different factual setting and stated:
Id. at ---, 267 S.E.2d at 183.
Because the re-enactment of the statute did not change the basic elements of the crime or the punishment, we found syllabus point 1, in part, of State v. Mason, 141 W.Va. 217, 89 S.E.2d 425 (1955) to be controlling:
"An act of the Legislature which repeals and simultaneously re-enacts a statute relating to a specific offense does not interrupt the continuous force of such statute...."
In Betts we recognized the result in State v. Thomas, a case decided over a year earlier, but added that "... the State had confessed error on this point and we, therefore, had no occasion to discuss the merits of the question." Id. at 267 S.E.2d at 183. State ex rel. Betts v. Scott, supra, now correctly states the law on this question. Therefore, we find appellant's first assignment of error to be without merit.
The second question for our determination is whether certain comments and conduct of the trial judge were prejudicial to the appellant so as to deny him due process of law. In particular, the appellant complains that in two instances during the trial, the judge may have given the jury an inference that he believed the defendant to be guilty.
Prior to examining the comments in question, we note the customary rule in this State on trial court conduct which was applied in the recent case of State v. Wotring, W.Va., 279 S.E.2d 182, 190 (1981):
2
We have also recognized that a trial court has the right to control the orderly process of a trial and may intervene so long as his conduct does not discriminate against or prejudice the defendant's case. State v. Burton, W.Va., 254 S.E.2d 129, 138 (1979). Furthermore, "a claim of improper trial court intervention must on occasion be viewed more broadly than from the narrow perspective of the incident itself." 254 S.E.2d at 138.
The first exchange appellant relies upon was during cross-examination of a state police trooper:
To continue reading
Request your trial-
State v. Banjoman
...occupies a "unique position" from which he may wittingly or unwittingly influence the jury in its deliberations. State v. Whittington, 168 W.Va. 288, 284 S.E.2d 363 (1981); State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1981); State v. McGee, 160 W.Va. 1, 230 S.E.2d 832 (1976), overruled ......
-
Hook v. COM., DEPT. OF TRANSP.
...same language as used in the Compact, the Supreme Court of Appeals of West Virginia has stated in State of West Virginia v. Whittington, 168 W.Va. 288, 289-290, 284 S.E.2d 363, 365 (1981), quoting State ex rel. Betts v. Scott, 165 W.Va. 73, 90, 267 S.E.2d 173, 183 (1980): The new statutory ......
- State v. Goff, 14898