State v. Jarrett , 119 W. Va. 432 ( 1937 )

I concur in the result of the decision in this case. A careful review of the record has convinced me that substantial justice has been done. However, I think that the second syllabus contains too broad a rule as to the use of the disjunctive in indictments. The rule governing such use should be relaxed only with great caution. In the instant case, the gist of the offense is the deprivation of the possession of the automobile from the person entitled to that possession. The words "owner" and "person in lawful charge of the possession or use" contained in the indictment and in the statute are tantamount to synonymous terms. Therefore, the use of the disjunctive is not prejudicial. The disjunctive is also used in reference to the place of taking. The word "place" used in the statute and indictment is sufficiently broad to be all inclusive of the other words describing the place from which the car was taken. The use of the disjunctive, therefore, will work no harm in the instant case. For further reasons in support of what I regard as the true and general rule, see Judge Kenna's dissenting opinion, in which I concurred, inState v. Keller, 118 W. Va. 296, 191 S.E. 201.