DocketNumber: No. 9763
Citation Numbers: 37 S.E.2d 553, 128 W. Va. 655
Judges: HAYMOND, JUDGE:
Filed Date: 3/19/1946
Status: Precedential
Modified Date: 1/13/2023
In my opinion the provisions of Code,
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,
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. *Page 676
Harris v. Missouri Gaming Commission , 869 S.W.2d 58 ( 1994 )
State v. Moubray , 139 W. Va. 535 ( 1954 )
State v. Garcia , 140 W. Va. 185 ( 1954 )
State v. Pietranton , 140 W. Va. 444 ( 1954 )
State v. Burton , 163 W. Va. 40 ( 1979 )
Williams v. Weber Mesa Ditch Extension Co. , 572 P.2d 412 ( 1977 )
State v. Clay , 135 W. Va. 618 ( 1951 )
State v. Gargiliana , 138 W. Va. 376 ( 1953 )
State v. Phillips , 176 W. Va. 244 ( 1986 )
State v. Davis , 139 W. Va. 645 ( 1954 )
State v. Theatre Corp. , 133 W. Va. 252 ( 1949 )
State v. Lewis , 133 W. Va. 584 ( 1949 )
State v. Taylor , 130 W. Va. 74 ( 1947 )