State v. Keller , 118 W. Va. 296 ( 1937 )

We have been guilty of an inadvertence in docketing this case. We have held that the order of a trial court quashing an indictment or warrant is a final judgment and that the matters of law arising therefrom may not be certified. State v.O'Brien, 102 W. Va. 83, 134 S.E. 464. Therefore, we should have refused to docket this certificate. I make this comment so that the case may not set up a precedent.

I am obliged to disagree with the majority opinion in this case because I believe that the effect of it is to undermine one of the simplest and most effective rules for preventing the vice of confusing allegations in warrants and indictments. It is so obviously unfair to permit a man to be charged with having committed this, that or the other offense, or with having committed an offense in this, that or the other way, that it is not necessary to repeat citations of authority to justify the rule against charging offenses or the manner of committing offenses in the disjunctive. A discussion of the decided cases in this state will be found in State v. Dawson,117 W. Va. 125, 184 S.E. 253.

I think that the quotation in the majority opinion fromState v. Charlton, 11 W. Va. 332, 27 Am. Rep. 603, must be amplified to show the sense in which the quoted language was used in that case. The full quotation is as follows, beginning at the bottom of page 336 of the official report: "But be the reason what it may for the decision in Morgan's Case, it ought not to be regarded as overthrowing the general rule, that an indictment ought not to state the case disjunctively, when it is thereby left uncertain, what is really intended to be relied on as the accusation." It will thus be seen that the court in the Charlton case by the use of the language quoted in the majority opinion, was simply stating the result of using the disjunctive form of allegation and was not attempting a technical and accurate statement of the rule. The court was merely attempting to say that Morgan's case did not change the rule in West Virginia. The language used by the court inCharlton's case can hardly be taken as establishing a rule in West Virginia that would permit a disjunctive allegation to be made in an indictment under any circumstances, because theCharlton case is one of the strongest cases written in this state sustaining the rule against disjunctive allegation. Furthermore, the kind of allegation that the court held bad in the Charlton case is, I think, exactly like the kind of allegation that we have before us in this case. In theCharlton case, the defendant was charged with having sold "at retail to Robert Bodocher intoxicating liquors to be drunk in, upon, or about the building or premises where sold, without obtaining a state license therefor according to law." The gravamen of the charge in the Charlton case was selling liquor to be drunk upon the premises without a license, but the manner of committing that offense was charged in the disjunctive. In the case at bar, the gravamen of the offense is driving an automobile while under the influence of intoxicating liquor, drugs or narcotics, and the manner of committing that offense is charged in the disjunctive. In the Charlton case, the court held that the indictment was bad, and, in my opinion, if we wish to follow that case, we must hold the warrant before us bad.

To say, as does the majority opinion, that the disjunctive allegation will be held bad only when it results in uncertainty as to what is to be relied upon for the accusation, is to utterly destroy the rule against that sort of allegation. The rule itself is intended to determine uncertainty of allegation, not to depend upon uncertainty otherwise arrived at. If we say, as does the majority opinion, that we will determine whether the allegation is uncertain first, and if we find it so, then say that the uncertainty arises from the disjunctive form of allegation, it is perfectly plain that the rule is destroyed. It is not the uncertainty that gives rise to the rule; it is the rule that determines the uncertainty. We certainly do not need the rule against disjunctive allegations to enable us to say that uncertain indictments are always bad. We do need the rule against disjunctive allegations to enable us to say that an alternative charge is always bad for the reason that it does result in uncertainty.

I submit with deference that the majority opinion fails entirely to lay down any rule at all or to define any definite exception to existing rules. It says simply that where a disjunctive allegation results in uncertainty, it will be held bad, and where it does not so result it will be held good. This pronouncement, it seems to me, results simply in throwing the question into the general field of uncertain allegations, and destroys entirely the value of the rule against disjunctive allegations as a means of discovering whether or not uncertainty exists.

Prior to the decision of this case, there were, I believe, but two exceptions in this state to the operation of the rule against disjunctive allegations. One is where the words separated by the disjunctive are synonymous the rule does not apply. In the case at bar, I suppose that no one would contend that intoxicating liquor and narcotic drugs are synonymous. The other exception, so far as I know confined to this state and Virginia, is that the rule has no application to cases in which the accused is charged with the offense of selling spirituous liquors, wines, etc., without a license. This rule, as was pointed out in the Dawson case, has been very much criticized by some of our later West Virginia cases, and this court in theCharlton case where the rule was applied with all of its vigor to an indictment charging the sale of intoxicating liquor to be drunk upon the premises without a license, expressly refused to extend it.

The rule against disjunctive allegations is easy to follow, and while its strict application may be thought artificial where it seems to appear from the record after trial that no real prejudice has resulted to the defendant, such a case furnishes a false guide for the reason that no one can tell what sort of record would have resulted from a trial on a proper indictment. A bad indictment results in a bad trial, and a fair trial cannot be based upon a bad indictment. I feel certain that the relaxation of the rule, or worse still, its abandonment, will result in creating opportunities for oppressive and unfair prosecutions. If such opportunities are allowed to exist, inevitably those will arise who will seek to take full advantage of them. The Anglo-Saxon has struggled constantly to protect himself from that very sort of oppression from those to whom individual power means more than respect for law.

Judge Riley joins in this opinion.