State v. Garner , 128 W. Va. 726 ( 1946 )

Gearls R. Garner was convicted in the Circuit Court of Greenbrier County of entering an election room in violation of Code, 3-7-12, and sentenced to confinement in the county jail for a term of thirty days. He brings the case to this Court by writ of error.

The primary election, held on May 9, 1944, in precinct No. 59, Meadow Bluff District, Greenbrier County, West Virginia, was conducted in two rooms of a school building, one of which abuts on the street and the other on the alley. The room abutting on the alley is entered by means of a door in the partition between the two rooms, and each room is equipped with windows opening on the street and alley. The front room was used for the purpose of receiving the ballots and the other room for counting ballots and tabulating results.

On the day of the election defendant was in the election room three times. On the first occasion he went to the voting place before the polls opened and assisted in preparing the voting booths and the rooms for holding the election. All persons who were to serve as election officers having arrived at the place of voting, a question arose relative to the eligibility of one of the persons to act as an election officer. Defendant took part in the discussion, but after it ended and before the polls opened, left the place where the election was to be held.

In the early afternoon he returned to cast his ballot and remained from three to ten minutes. One of the election officers testified that during the time defendant was there on the second occasion, he entered the rear room, in which one or more election officers were engaged in performing their duties, but upon request he went out of the room. Defendant denies entering the rear room on the second occasion, but admits he may have stopped at the door in the partition to inquire of the election officers if they desired him to procure their noonday meal.

On the third occasion defendant went into the room where the election was held between nine-thirty and ten o'clock on the night of the election, after all ballots had been cast, counted, and results tabulated, the election officers being then engaged in transcribing results to the official certificates. One of the witnesses for the State, as well as defendant, testified that on the occasion of his third visit, defendant entered the front room with two persons, one of whom was a constable and the other Chairman of the Republican County Executive Committee of Greenbrier County, and that defendant remained in the room about ten minutes. Defendant testified that the purpose of his last visit to the election room was to ascertain the results of the election so that he could transmit such information by telephone to the County Clerk of Greenbrier County, but, upon being requested to leave by a deputy sheriff, he departed without receiving the desired information. The deputy sheriff, who requested defendant to leave the voting room, testified that he noted defendant's presence in the room; that defendant, was standing near a desk at which the election officers were seated, and apparently engaged in conversation with them; but the deputy sheriff did not know what the defendant was discussing with such officers. One of the State's witnesses testified that on the the occasion of the third visit, defendant entered the counting room and assisted in moving a table to a position where the light was more satisfactory. Other witnesses testified that defendant sat on a bench at the entrance to the front room and did not enter the rear room.

It is admitted that defendant was not requested to enter the room on any occasion by any election official. No evidence was introduced by the State from which it may be inferred that defendant engaged in any improper or unlawful activities during any of his visits to the voting room, nor is there any proof of his intent to do an unlawful errand and effectuate an improper purpose.

Defendant moved the court to set aside the verdict and grant him a new trial and in arrest of judgment. These motions were overruled, to which rulings due exceptions were taken. Defendant assigns as error the action of the court in giving an instruction tendered by the State over his objection; in refusing to give five instructions tendered by him; in modifying another instruction tendered by him over his objection; in overruling a motion to set aside the verdict; and in overruling the motion in arrest of judgment. For reasons hereinafter set forth it is unnecessary to discuss any of the foregoing assignments of error except that relating to the motion in arrest of judgment.

The offense here charged is based entirely on statute, the original statute defining the offense being Section 81, Chapter 89, Acts of the Legislature, 1891, which prohibited the entry or attempted entry of any unauthorized person into an election ward contrary to the provisions of that section, and upon conviction provided that such person should be fined not less than one hundred nor more than five hundred dollars and confined in the county jail not less than thirty days. The statute as originally enacted, except that the word "ward" was changed to "room", was designated as Section 81, Chapter 3 of the Code of 1923. The statute upon which the indictment herein is based reads as follows:

"If any person, not herein authorized so to do, shall enter or attempt to enter the election room, except upon a lawful errand and for a proper purpose, or shall remain within sixty feet of the polling place, contrary to the provisions of this chapter, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than five hundred dollars, or confined in the county jail for not more than thirty days."

Code, 3-7-12. In the Code revision of 1931, the following words were added: "except upon a lawful errand and for a proper purpose", and the penal provision of the statute provided fine or imprisonment in the alternative rather than a fine and imprisonment as provided in the original enactment.

Under Section 81, Acts of 1891, the entry of any unauthorized person into an election ward, regardless of his purpose, constituted an offense. Under the statute here considered the offense was so described as to permit entry by a person on a lawful errand and for a proper purpose.

The constitutionality of the present statute is challenged upon the ground that the provisions thereof do not describe the offense therein denounced so as to furnish a criterion or standard by which it may be determined whether a crime has been committed. It is argued that unless the statute is aided by other statutes relating to election offenses and acts forbidden under the provisions of Chapter 3 of the Code, the description of the offense is so generic that no offense is created thereby, and that a court or jury could create the offense. This position is arguable under the rule announced in State v.Lantz, 90 W. Va. 738, 111 S.E. 766, and United States v. L.Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L.ed. 516.

Early in the history of this Court, it was held that: "A court will not pass upon the constitutionality of a statute, unless a decision upon that very point is necessary to the determination of the case." Edgell v. Conaway, 24 W. Va. 747. The same principle is restated in Norris v. County Court,111 W. Va. 692, 163 S.E. 418, in the following language: "The decision of a question involving the constitutionality of an act is one of the gravest and most delicate of the judicial functions, and while the Court will meet the question with firmness where its decision is indispensable, it is the part of wisdom, and a just respect for the legislature renders it proper, to waive it if the case in which it arises can be decided on other points."

For a discussion of the rule stated in the Norris and Edgell cases, see 1 Cooley's Constitutional Limitations, 8th ed., 338,et seq. This case can be disposed of upon the question of the sufficiency of the indictment raised by the motion in arrest of judgment and, therefore, we refrain from expressing any opinion on the constitutionality of the statute here considered.

An indictment being per se part of the record, the question of its sufficiency may be raised by a motion in arrest of judgment. 3 Wharton's Criminal Procedure, 10th ed., Section 1692; Burks' Pleading and Practice, third ed., Section 300. We bear in mind the provisions of Code, 62-2-10, 11. Upon examination of those statutes it is clear that although the effect and scope of judgment have been limited thereby, nevertheless such motion is still effective to raise the question whether an indictment actually charges any crime.

Omitting the formal parts, the indictment herein charges that defendant "* * * on the 9th day of May, 1944, in the said County of Greenbrier, did unlawfully and without authority enter the election room of Voting Precinct Number 59 in Meadow Bluff District, Greenbrier County, West Virginia, while the May, 1944, Primary Election was being held and conducted therein as provided for by law, on the date aforesaid, he, the said Gearls R. Garner not being then and there upon a lawful errand and not being then and there in the election room aforesaid for a proper purpose * * *."

The offense described by the statute consists of entry into a voting room wherein an election is being held, by an unauthorized person, except upon a lawful errand and for a proper purpose. The words "except upon a lawful errand and for a proper purpose" are included in the enacting clause of the statute, and are part of the description of the offense denounced therein. Clearly, if any person enters a voting room while an election is being held upon a lawful errand and for a proper purpose, there would be no violation of the statute. The added words created an exception within the enacting clause of the statute, and an indictment thereunder must negative the lawfulness of the errand and the propriety of the purpose on which, and for which such entry was made. State v. Weir, 71 W. Va. 93,76 S.E. 138; State v. Welch, 69 W. Va. 547, 548,72 S.E. 649; 1 Wharton's Criminal Procedure, Tenth Edition, Section 289. See 2 Lewis' Sutherland Statutory Construction, Second Edition, page 671. The indictment by alleging that defendant was not on a lawful errand and was not there for a proper purpose, attempts to negative the exception above noted. But those allegations are conclusions rather than facts. As was stated in the opinion in State v. Wohlmouth, 78 W. Va. 404,407, 89 S.E. 7: "* * * facts, not conclusions of law, must be stated."

The errand and purpose motivating the defendant's entry into the election room are not specifically alleged. It is a general rule that an allegation in the words of the statute under which an indictment is drawn is sufficient. But there is an exception to that rule equally as well established. Where, as here, a statute describes the offense in general terms, an indictment following the words of the statute is not sufficient. The indictment must amplify the statutory description of the offense by specifically alleging commission of the act or acts constituting the offense charged. State v. Simmons, 99 W. Va. 702,129 S.E. 757; State v. Lynch, 84 W. Va. 437, 100 S.E. 284.

One object of an indictment is to describe the crime charged so that the accused shall be "fully and plainly informed of the character and cause of the accusation." Article III, Section 14, Constitution of West Virginia. In the instant case the accused was not informed by the indictment as to facts whereby his errand was not lawful, nor was he advised in what respect his purpose was not proper. The indictment should have specifically alleged facts, which, if proved, would establish that the errand on which, and the purpose for which, defendant entered the election room were not lawful and proper. Not including such allegations the indictment is insufficient, and alleges no offense.

Accordingly the judgment of the Circuit Court of Greenbrier County is reversed, and this case is remanded.

Reversed and Remanded.