State v. Livesay , 127 W. Va. 579 ( 1945 )

I respectfully dissent from the reasoning and result set forth in the majority opinion.

The primary principle of determining the sufficiency of an indictment is established by our Constitution. The indictment must be so drawn that "* * * the accused shall be fully and plainly informed of the character and cause of the accusation, * * *." Constitution of West Virginia, Article III, Section 14. It follows that when the requirement of the constitutional provision is met, the allegations in the indictment sufficiently describe the offense charged so that the person accused may subsequently plead in bar an acquittal or conviction under such indictment. The constitutional requirement applies alike to indictments charging common law and statutory crimes. It is to be noted that the above quoted provision of the Constitution requires that the accused be fully and plainly informed of thecharacter and cause of the accusation, and does not impose upon the State the duty to inform the accused of the manner in which or the means by which the crime charged was committed. State v.Schnelle, 24 W. Va. 767.

An indictment must allege facts and not conclusions.State v. Parkersburg Brewing Co., 53 W. Va. 591, 45 S.E. 924;State v. Wohlmouth, 78 W. Va. 404, 89 S.E. 7.

The indictment here charges the commission of a crime defined by statute. It is a general rule of criminal pleading that an indictment charging a statutory crime in the language of the statute is sufficient. State v. Constable, 90 W. Va. 515,112 S.E. 410; State v. Lantz, 90 W. Va. 738, 111 S.E. 766. But where the offense denounced by the statute is described therein in general terms, a particular description of the offense must be alleged in the indictment. State v. Mitchell, 47 W. Va. 789,35 S.E. 845; State v. Lynch, 84 W. Va. 437,100 S.E. 284; State v. Simmons, 99 W. Va. 702, 129 S.E. 757; State v.Lake, 112 W. Va. 665, 166 S.E. 384. It has been held that the exception above indicated is likewise applicable to common law crimes as well as offenses defined by the statute. Boyd v. TheCommonwealth, 77 Va. 52.

I would not deviate from the general rule or the exception. They are established by well considered cases, and the reasons given for the decisions are sound. But I do not think that the indictment here considered comes within the exception. The offense here charged is defined by subsection (a), Code, 3-7-1. As will be seen from reading the statute, the gravamens of the offenses therein defined are knowingly making, causing to be made or conspiring to make a false return of the result of votes cast for any candidate in any precinct at any lawful election. It is the duty of the commissioners of election and poll clerks to ascertain the true results of an election in the precinct where they serve. Of course, an inadvertence or mistake which results in making a false return of an election would constitute no crime under the statute. It is only when such false return is knowingly made that the statute is violated.

What can be more specific than the act of falsifying the true result of an election? There is no middle ground between a false and true return. The line dividing a false from a true return is clear and distinct. How many kinds of false returns of election may be made? How many kinds of true returns of elections can be made? When such returns are considered from the standpoint of the truth or falsity thereof, the answers to the foregoing questions are obvious. Regardless of the manner in which, or the means by which, the return of an election is falsified, it still remains a false return. In the indictment here considered the name of the candidate as to whom the returns were allegedly falsified is stated in the indictment, thus apprising the accused of the specific part of the election returns alleged to have been falsified by them. The majority opinion mentions several ways in which an election return may be falsified. It is unnecessary to allege in the indictment the manner in which the offense was committed. State v. Schnelle,supra.

An indictment is sufficient if it plainly and fully informs the defendant of the offense with which he is charged, so that he may prepare to refute the accusation, and if it is so explicit as to avail the accused on a subsequent plea of a former conviction or acquittal. In my view the indictment here considered meets the test set forth above.

The language of the statute and the indictment being specific rather than generic, as indicated above, I would hold that the indictment sufficiently charges the offense by following the language of the statute. State v. Williams, 108 W. Va. 525,151 S.E. 852; State v. Matthews, 117 W. Va. 97, 184 S.E. 665; State v. Masters, 106 W. Va. 46, 144 S.E. 718.

Since the majority opinion does not discuss the second ground of demurrer to the indictment, I refrain from expressing any opinion thereon.