State v. Stollings

Riley, Judge : The defendant, Wayne Stollings, was indicted by the grand jury of Lincoln County, West Virginia, of felon-iously and unlawfully operating “a motor vehicle, to-wit: a 1937 Ford Tudor Sedan * * * upon a public road in said Lincoln County, West Virginia, to-wit: State Route No. 10 in said Lincoln County while intoxicated or under the influence of intoxicating liquor, drugs or narcotics”, in violation of Code, 17-8-25, and of a prior conviction before a justice of the peace of Lincoln County, West Virginia, upon a warrant issued on October 8, 1936, charging that said Wayne Stollings “did unlawfully operate a motor vehicle upon a public road in said Lincoln County while intoxicated or under the influence of intoxication liquors, drugs or narcotics”. Defendant demurred to and moved to quash the indictment, and objected and excepted to the action of the court in overruling the demurrer and motion to quash. In addition to the conviction in Lincoln County embraced in the indictment, the prosecuting attorney filed *485 information of three prior convictions for violation of the National Prohibition Act in the District Court of the United States for the Southern District of West Virginia, on January 2, 1930, April 19, 1933, and March 12, 1935, respectively. Defendant was found guilty “as charged in the within indictment” and sentenced to life imprisonment in the penitentiary. In this Court the defendant urges several assignments of error, the first of which is that the circuit court erred in overruling defendant’s demurrer to and motion to quash the indictment. The question arising on this first assignment of error is, in our opinion, controlling on this writ of error. Code, 17-8-25, as amended and reenacted by Chapter 64, Acts 1935, the statute upon which this prosecution is based, reads in part: “No person shall drive or operate any vehicle,' motor driven or otherwise, upon any public road or street in this state, while intoxicated or under the influence of intoxicating liquor, drugs or narcotics.” This Court had the foregoing statute under consideration in the rather recent case of State v. Keller, 118 W. Va. 296, 191 S. E. 201, which involved a warrant charging defendant with unlawfully driving and operating a “certain [motor] vehicle, to wit: An automobile on a certain public highway within this state while he the said Freeman Keller was then and there intoxicated and under the influence of intoxicating liquor, drugs or narcotics.” (Italic ours.) It is to be noted that in the Keller case the warrant followed the language of the statute except that the word “and” was used between the words “intoxicated” and “under”, instead of the word “or”, as used in the statute. The majority opinion of the Court, to which two members dissented, held that the warrant met the requirement of Article III, Section 14, of the Constitution, that the accused person “shall be fully and plainly informed of the character and cause of the accusation.” In a number of cases prior to the Keller case this Court has considered warrants and indictments involv *486 ing statutes which describe several offenses or several different modes of committing an offense by separating them with the disjunctive “or”. In State v. Dawson, 117 W. Va. 125, 184 S. E. 253, it was held that the use of the word “or” in conjunction with gaming devices enumerated in Code, 61-10-1, in an indictment which charged the keeping and exhibiting of different sorts of gaming devices, naming them in the disjunctive, is bad on demurrer. There the first count of the indictment, following the language of the statute, charged that defendant did “unlawfully keep and exhibit gaming tables commonly called A. B. C. and E. O. tables or faro bank or keno tables and other' gaming tables and devices of like kind”; and the second count of the indictment charged that defendant was “concerned in interest” in keeping and exhibiting gaming tables, described in the identical language used in the first count of the indictment. In State v. Miller, 68 W. Va. 38, 69 S. E. 365, an indictment charging the practicing of dentistry for a salary, fee or reward without a state license, disjunctively, towit: “Performance of operations or parts of operations, treating of diseases or lesions of the human teeth or jaw” was bad because the indictment should have used the conjunctive “and” instead of the disjunctive “or”. In the earlier case of State v. Charlton, 11 W. Va. 332, an indictment which charged the defendant with selling, without license, intoxicating liquors to be drunk where sold was held defective on demurrer because of the use of the disjunctive “or”, though the indictment, following the language of Chapter 99, Section 1, Acts of the West Virginia Legislature, 1872-73, which created the offense, charged that defendant sold intoxicating liquors to be drunk “in, upon, or about the building or premises where sold, without [first] obtaining a State license therefor according to law”. (Italic supplied.) But in Cunningham v. State, 5 W. Va. 508, this Court, following the Virginia case of Morgan v. Commonwealth, 48 Va. 592 (7 Gratt.), decided without opinion; affirmed a conviction of defendant on the charge of sale at retail of “rum, wine, brandy, or other spirituous *487 liquors” to be drunk in his house. Jiudge Berkshire, who wrote the opinion of this Court, declared, in effect, that if the question were open, he would be disposed to think that there was much force in it, but that the Court was bound by the decision of the Virginia court in Morgan’s case. Thereafter, in the Charlton case, Judge Green, speaking for the Court, expressed the opinion that the rule in Morgan v. Commonwealth, should not be extended to what was then the general rule to a case not involving a description of different kinds of liquor. At this late date, we are unable to say whether Judge Green and his colleagues on this Court thought that the rule as to use of disjunctive allegations in an indictment involving the sale of intoxicating liquors, was too well settled to be disturbed or it was too difficult to charge offenses for the illegal sale of intoxicating liquor in view of the difficulty of specifying the various kinds. The instant indictment, in our opinion, sets forth four distinct statutory offenses, that is driving or operating any vehicle, motor' driven or otherwise, upon any public road or street while (1) “intoxicated”; (2) “under the influence of intoxicating liquor”; (3) “under the influence of drugs”; or (4) “and under the influence of narcotics.” It is noted that in the Keller case the warrant charged that defendant was “intoxicated and under the influence of intoxicating liquors, drugs or narcotics”. (Italics supplied). We disapprove the decision in that case in so far as it justifies the use of the disjunctive “or” between the words “drugs” and “narcotics”, for the reason that we do not feel justified in departing from the rule inherent in our criminal practice that indictments should not set forth in the disjunctive separate and' distinct offenses. This rule has been applied uniformly by this Court in every case, except the Keller case and those cases, such as Cunningham v. State, supra, in which the defendant was charged with the sale at retail of “rum, wine, brandy, or other spirituous liquors” to be drunk in defendant’s house. The rule simply re *488 quires that a defendant be distinctly informed in the indictment of the crime or crimes for which he is to be tried. It is, as suggested by this Court in the Dawson case, a “time-honored and rudimentary rule of criminal pleading,” It is consonant with justice that a person should not be arraigned for criminal trial, in the absence of a vparrant or indictment fully informing him as to the crime with which he is charged. A contrariwise rule would break down the constitutional safeguards which have been wrapped around the citizenry of this State. We, therefore, are of the opinion that the instant indictment does not meet the requirements of West Virginia Constitution, Article III, Section 14. For the foregoing reasons the judgment of sentence is reversed, the verdict set aside, and the case remanded to the Circuit Court of Lincoln County, with direction that the indictment be dismissed. Reversed and remanded.