State v. Rigsby ( 1942 )

I disagree with the reasoning of the majority opinion concerning the sufficiency of the affidavit supporting the search warrant, and also in its conclusion that a conviction based upon the indictment under which the accused stands charged will sustain the sentence for a felony under our habitual criminal act.

The Prohibition Act of 1913 (Acts 1913, ch. 13, sec. 9) provided, in substance, that a search warrant based upon a suspected violation of that act would issue upon the filing of an affidavit made upon information and belief, requiring no statement of fact. This rather loose requirement was in keeping with the general rule governing searches and seizures under Code, 62-1-18.

It was later found, however, that in the enforcement of the prohibition law to base the issuance of a search warrant upon an affidavit in the making of which the complainant was required to accept no responsibility whatsoever resulted in many brutal abuses of power by the law enforcement agencies.

In order to deal with the situation that had arisen and to protect the people of West Virginia, including the law-abiding, from the outrageous practices perpetrated under the guise of the police power, the 1935 Legislature in repealing Prohibition and enacting the Alcohol Control Act altered the section relating to search warrants authorized when the violation of that act was in question, by inserting a provision requiring the complaint under oath upon which the issuance of the search warrant rested, to set forth facts giving rise to the belief that the provisions of the act were being violated, not required in the act of 1913.

I am of the opinion that the change in the provisions of the act governing the use of search warrants applicable to the unlawful handling of alcoholic liquor shows clearly the legislative purpose to limit that use more than it had been limited under the then existing statute, even to the extent of requiring the disclosure of possibly material facts to the person whose property was to be searched. I think this view of the matter is emphasized by the fact that the Legislature left the statute governing the use of search warrants in general involving other violations of the law and not requiring a statement of fact in the supporting affidavit, unchanged.

Code, 60-6-18, requires that before a search warrant shall be issued based upon the violation of our liquor law, an affidavit be filed to the effect that the affiant believes the law is being violated and "setting forth the facts for such belief ". Here the affidavit states "that the facts for said belief are that the affiant knowing the said Elbert Rigsby to be a bootlegger and having received information that the said Elbert Rigsby would deliver whiskey to 840 1/2 Fourth Avenue, in the above said automobile." Affiant's knowledge that the accused was a "bootlegger", I do not believe can be regarded as the statement of more than an opinion, and certainly any information that the officer had received concerning Rigsby's future conduct, whether to deliver whiskey or what-not, cannot be regarded as a statement of fact. To reason that the statement in the affidavit that the affiant has received information is a statement of fact justifying the issuance of the warrant, plainly defeats the purpose of the statute. It is actualities, not reports that may have passed through a dozen mouths, that the statute requires to be the foundation of a lawful search of a person's home. Of course, I agree that the affiant should not be required to make a full disclosure of the case against the accused in order to procure a search warrant, but certainly the statute in requiring a statement of fact does not mean opinion and prophecy. There is a galaxy of cases dealing with time-honored maxims that could be cited relating to search and seizure, but their volume is such that their citation would be an impediment instead of a help.

Each count in an indictment must plainly charge all of the essential elements which constitute the offense which the state will seek to prove at the trial. Certain allegations of one count by express reference may be included in those of another. We are not concerned with that rule here, save to say that the majority opinion destroys its necessity.

I do not believe that in criminal pleading form can be disregarded to the extent of utterly ignoring a pleader's stated purpose in labeling certain parts of the indictment "second count". If the "substance" may be looked to, and structure accordingly altered, to the extent of consolidating without reference material allegations contained in a first count with those contained in what is labeled "second count", so that the combination will comprise a felony accusation, I do not see why the same process cannot be applied to what might be labeled third count, fourth count, fifth count, and so on. There are certain rigid standards applicable to pleadings in criminal cases that are absolutely essential, and I fear that the majority opinion may establish a rule which, when put into operation, will lead to much loose pleading, and to the abandonment of the generally recognized standard. In order for the accused to be fully informed concerning the charge that he is confronted with, each count in an indictment must contain an allegation of every integral part of the offense. It cannot be left to the defendant in a criminal prosecution to seek "substance" in two or more counts of an indictment.

I believe the following citations will be found to sustain the principle that as to the sufficiency of their averments, the counts of an indictment stand alone. State v. Vaughan,93 W. Va. 419, 117 S.E. 127; Beale's Criminal Pleading Practice, section 205, page 231; 27 Am. Jur., Indictments and Information, section 219, page 687.

Judge Riley concurs in this opinion.