State v. Hudson , 128 W. Va. 655 ( 1946 )

In my opinion the provisions of Code, 61-10-11, under which Hudson was indicted are of doubtful validity for the reason that they do not describe the offense with sufficient certainty to set up a standard or criterion, but leave the application of a criminal statute largely in the hands of the separate courts and juries. See the discussion inState v. Lantz, 90 W. Va. 738, 11 S.E. 766, 26 A.L.R. 894. The statute makes it unlawful to knowingly permit a lottery in a house "under his control". I realize that the quoted phrase would necessarily include the owner or a tenant, dependent upon circumstances. See Commonwealth v. Wentworth, 146 Mass. 36,15 N.E. 138. But how much further the extension of that language might be attempted it is difficult to say. This case is an illustration, to my mind, of the reason for requiring criminal statutes to be clear and explicit, and doubtful meanings resolved in favor of the accused.

Conceding the validity of the statute, however, in my opinion the indictment under consideration does not fall within the general rule that an indictment for a statutory offense that substantially follows the wording of the statute is sufficient. That rule is subject to a well recognized exception where the language of the statute is general, or generic, as it seems to me it undoubtedly is in an all inclusive statute such as this. In such instances the indictment must reduce the general language of the statute to distinct averments so as to inform the accused of the actual conduct that he must defend.State v. Simmons, 99 W. Va. 702, 129 S.E. 757. The fact that the language of the provision under consideration is general could not be more clearly admitted than it is by the majority's discussion of the comprehensive meaning of the word "lottery". In the drafting of the indictment the grand jury departed from the language of the statute by describing the location of the lottery as "premises under his control" instead of "house under his control", as the statute reads. The second, third, fourth and fifth counts of the indictment charge that the offense was committed in "premises under his control", there having been three accused, one of whom was a woman. An indictment should charge the offense so specifically that a final judgment can be pleaded in bar of a subsequent prosecution for the same offense. For these reasons, a general discussion of which is readily available in the cited case and references there found, I am of the opinion that the demurrer to the indictment should have been sustained.

A bill of particulars cannot cure a bad indictment, but assuming the indictment under consideration to be good, we are then confronted by the accused's demand for a bill of particulars and with the opinion's discussion of this question I disagree also. I do not believe that the indictment, which does not attempt to locate "the premises" except as being in Kanawha County, without a bill of particulars, furnished the accused with the information necessary to acquaint him with the conduct charged to have been criminal and enable him to defend against that charge. Granting that a bill of particulars is subject to the reviewable discretion of a trial court, I think that here it would have been an abuse of discretion to deny it. It is conceivable that a person may have in Kanawha County any number of premises under his control. It might be that the accused could have been operating a lottery in more than one premise under his control in Kanawha County. This being an indictment against three persons, the chances of different circumstances confronting those on trial were of course trebled. Under all of these circumstances I think that the trial court very properly and necessarily granted the accused's demand for a bill of particulars that restricted the State's proof to premises known as the Plaza Cigar Store at 121 Summers Street.

I concur in the result reached by the majority and with the principles of law stated in the syllabi. In my opinion those principles have been misapplied to the extent that I have attempted to indicate.