State v. Telephone Co. , 121 W. Va. 420 ( 1939 )

I agree with the majority opinion except as to that part which holds that it is not necessary that the indictment charge that the alleged offense was "knowingly" committed, and that lack of knowledge can only be considered in mitigation of punishment.

Ordinarily, an indictment is sufficient if it charges the offense in the language of the statute. This is especially true as to offenses malum prohibitum. However, as to cases of this character, I have understood that all of the elements necessary to constitute the offense charged must be alleged. State v.Lynch, 84 W. Va. 437, 100 S.E. 284. I do not think there is any fixed rule which can be followed in all cases.

The defendant, being a public utility, must serve those who apply for its facilities, without discrimination. Of course, it cannot defend in this case on that ground alone, for the statutes and regulations which require the furnishing of service, without discrimination, must be read in connection with other statutes which prohibit it from aiding in violation of law. Being under this requirement of service, I cannot believe it was intended to make its compliance therewith a crime, unless done with knowledge that an unlawful act was thereby aided. The state in its brief, and on oral argument, seems to recognize the importance of knowledge, when it concedes that a showing of lack of knowledge would be a defense to the charge and thus, in effect, admits that knowledge is a necessary element of the offense alleged. If this be true, it seems to me that it necessarily follows that knowledge should have been alleged in the indictment.

The majority opinion does not follow the concession of the state, and would consider lack of knowledge only in mitigation of punishment; but in my opinion, the failure to show knowledge on the part of the state, or a showing of lack of knowledge on the part of the defendant, that it was furnishing its services to a pool room would entitle it to a verdict of acquittal. To require the defendant to furnish its services to all parties who apply therefor, without discrimination, and, at the same time, impose upon it the risk that someone to whom those services are furnished may, without its knowledge, use them to violate another statute, seems to me to place too much of a burden upon persons engaged in the particular character of business in which the defendant is engaged. The nature of such business, in my judgment, calls for a different rule than that applied to cases cited in the majority opinion, which involve charges of sales of intoxicating liquors to minors.

I would reverse the judgment of the circuit court and sustain the demurrer to the indictment.

Judge Hatcher joins in this dissent.