State v. Riffe , 10 W. Va. 794 ( 1877 )

Moore, Judge,

delivered the opinion of the Court:

An indictment Avas found in the circuit court of Monroe county against A. L. Piffe for selling spirituous liquors without license. On the 18th October, 1872, the defendant appeared and plead not guilty; and on tbe 16tb October. 1874, defendant again appeared, and" moved the court to quash said indictment, which motion was sustained, and the defendant discharged; thereupon, the State petitioned for and obtained from this Court a writ of error, and in that way presents the case for the adjudication of this Court upon two alleged grounds of error:

1st. It was error to quash the indictment upon the ground that it used the language “without a license so to do,” instead of the statutory language used' in ch. 32, see. 1, Code 1869, viz: “ Without a state license therefor.”

2d. It was error to quash the indictment, for the reason that the motion came too late, the defendant having long before plead to the indictment.

Judge Moncure, in delivering the opinion of the court in Commonwealth v. Young, 15 Gratt., 666, said: “ In an indictment for a statutory offense, it is generally proper and safest to describe the offense in the very terms used by the statute for that purpose. But it is sufficient to use in the indictment such terms in the description, as that, if true, the accused must of necessity be guilty of the offense described-in the statute; and especially so in a case falling, as this does, in that class, concerning which the law provides, that “no exception shall be allowed for any defector want of form in the presentment, indictment or information, but the court shall give judgment thereon according to the very right of the case. Code ch. 207, §24, p. 772. If the indictment may be true, and still the accused may not be guilty of that offense, the indictment is insufficient, even though it fall within the class to which the provision aforesaid refers.”

I adopt* the language of the learned Judge, because in my view, it not only clearly enunciates the true principle, but is exceedingly appropos to this case.

To state the offense in the words of the statute, is the simplest, safest and most correct mode of drafting an indictment. Whilst, it is true, equivalent words may be used in lieu of the statutory description of the offense, yet it is dangerous as tending not only to material inaccuracy in substance, but also to irregularity in matters of form. But if the. words of the statute are not employed, other words clearly equivalent must be used, so as to bring the offense charged within the provision and limitations of the statute defining or creating it.

Judge Moncure, in the opinion in the case just cited, in distinguishing that case from Peer’s case, 6 Gratt., 674, and Hatcher’s case. 6 id., 667, said: “In each of these cases the indictment was for retailing ardent spirits not Jo -be drank where sold without having obtained a license therefor, and yet was held to be sufficient. But they were founded on the act of March 7, 1834, (Sess. acts ch. 3, p. 6), or the act of March 3, 1840, (Sess. acts, ch. 2, p. 5), which acts are almost identical, the third section of which subjects to the penalty therein mentioned, any person, &c., who shall otherwise than as therein after expressly provided, retail ardent spirits &c.; and the fifth section of which provides, that if any person, having a merchant’s license, &c., shall, in addition thereto, obtain a certificate as therein mentioned, he shall, “by virtue of such certificate, but not otherwise, be authorized, during the time for which his merchant’s license may have been granted, “to retail ardent spirits, &c. In an indictment on either of these acts, the. words “ without having obtained a license therefor,” were plainly equivalent to the words “without having obtained a merchant’s license and, certificate, as required by the 5th section.” The merchant’s license and certificate together, constituted a license to retail ardent spirits.”

In the case before us, I am of opinion, that the terms used in the indictment, come nearer the statutory description of the offense than did the terms used in the two cases just referred to, as distinguished by Moncure, Judge ; and that the omission of the words “ state,” so as to make the indictment read, “ without a license so to do,” instead of reading, “without a state license, &c.,” is immaterial; and that the terms used are equivalent to those of tbe statute. The state Legislature in providing for its own revenue in the act, by adding the word state, meant no more than did the former statute, which omitted the word state, but used the word simply in contradistinction of the license required by the federal government, and with which the state had nothing to do; and that the Legislature did not intend it should be essential as descriptive, it is observed in the fourth section of the same chapter, the word “license” is used, and not “ state license.” The court erred in quashing the indictment, because it could have given judgment thereon according to the very right of the case. Code, ch. 158, §21, p. 716. And at most, it is simply the omission of a word, which, in this instance, is mere form and surplusage. Code, ch. 158, §10, p. 715.

As to the question that the motion to quash was made after the plea had been entered: The proper course is to move to quash before pleading, but the court may, at any time before the trial upon the plea, permit the plea to be withdrawn, and enter the motion to quash, at the instance of the defendant.

The judgment of the circuit court should.be reversed, with costs to the state against the defendant, and the case remanded to the circuit court, to be proceeded in according to the principles enunciated in this opinion, and further according to law.

Judgment Reversed and case remanded.