*1 Pyles Marion Virginia Boles,
Otto C. Warden of West Penitentiary (No. 12280)
Submitted 1964. January April Decided 1964. 466- *3 Judge, dissenting.
Calhoun, A. General, Claude Robertson, Attorney C. Donald Sommerville, Attorneys Gen- Assistant Joyce, Albert L. eral, for error. plaintiff Chase, Jr., in error. Chase, defendant
Rickey & J. K. Haymond, President: Cir- habeas instituted corpus proceeding
In this Virginia, April County, cuit Court of West Marshall error, the peti- Court writ upon and now the defend- tioner, require Marion seeks writ Pyles, Peni- Virginia ant, Boles, of the West Otto C. Warden from confinement to release the tentiary, petitioner aby judg- he was committed penitentiary West Monongalia County, Circuit Court of ment 5, 1961, sentenced June Virginia, rendered of this State penitentiary confined in the to be petitioner sixty years. for a period charging the indictment contended that
The petitioner John Nine was void kidnapping crime of him with the try jurisdiction court was and that circuit the indictment and to and convict petitioner *4 in confinement the State peni- the sentence of impose tentiary. re- the the amended petition, hearing upon the
Upon the the demurrer and petition, turn of the defendant defendant, argument 'and the of the quash the motion the the respective parties, in attorneys of the behalf 13, 1963, June court, final entered award- circuit order by the ed writ applied by petitioner and ordered defendant forthwith to release the from his petitioner in confinement Virginia West Penitentiary. To that judgment this Court awarded error this writ of and su- persedeas September 23, upon the application of the defendant.
On May during April 1961 Term of the Circuit Court Monongalia County, Virginia, West petitioner, Marion Pyles, 14a, was indicted under Section 61, Code, Article Chapter amended, for the crime of kidnapping John indictment, W. Nine. The count, contains one charged petitioner April 1961, Monongalia did County, unlawfully and felonious- ly, by duress, force, threat, take, enticement, fraud! and confine, conceal inveigle and decoy, and entice and away, otherwise kidnap, County, Preston Virginia, West and transport within Monongalia hold County, and and de- tain in that county, his against will and without his con- sent, Nine, John W. for the purpose and with the intent of taking and demanding advantage, concession and other thing John Nine, from and did, the petitioner awith dangerous a sawed weapon, gun off shot and pistol, and unlawfully threaten feloniously and force John W. Nine, against his consent, will without his to trans- port Pyles Marion from Preston County, West Virginia, to and in Monongalia County, West to the Virginia, ad- vantage and concession of Marion against the Pyles, peace 'dignity State.
The petitioner tried the foregoing indictment in the Court Monongalia County Circuit on May and was found guilty of the ofíense as charged having indictment. waived the death court penalty, the circuit order entered June 5, 1961, sentenced the petitioner to be confined in the penitentiary this State for a term of sixty years.
The evidence introduced at in the trial Circuit Court Monongalia County upon the indictment against petitioner any motions petitioner made record, at such are not trial included of this pro- *5 of this writ Court upon and are not ceeding ibefore criminal of the of the record only The portions error. County Monongalia in the Circuit Court proceeding in- the are record of this .proceeding incorporated the verdict record court orders which and the dictment and com- of imprisonment the sentence guilty, impose penitentiary. the of the warden petitioner mit the for the defendant assigned by errors principal ac court are the of the circuit judgment of the reversal the substance, (1) that holding, tion of that court tried, con the was indictment, petitioner which upon that void; (2) is to imprisonment, victed and sentenced was without Monongalia County the Circuit Court petitioner upon and sentence the try jurisdiction release should (3) that the defendant indictment; and in the peni confinement from his present the petitioner assignments of these error tentiary. support sufficiently indictment that contends defendant a single the commission with charges petitioner tried and con was County where Monongalia crime statute, which upon of the victed, that the provisions and tried was petitioner and the was based the indictment n and imposed to be convicted, describing punishment not constitute do statutory of the conviction upon the char deal merely but of the offense elements to be imposed the punishment extent of and the acter the statute. under that indict insists contrary petitioner
On sufficiently of the crime with him to inform fails ment fully it does not is void because charged he is and of the inform the character cause him of plainly on which statute him, and because against accusation dif three offenses with creates based the indictment returned of guilty the verdict ferent punishments; it did not specify defective because fatally convicted; was the petitioner of which the offense charged offense the venue lays the indictment is, inconsistent, for that fatally counties, being two Monongalia the Circuit Court void; and that reason, County was jurisdiction try the petitioner because fails to the venue of lay in that alleged county.
The statute which creates the crime of kidnapping, indicted, the petitioner convicted, *6 tried and 14a, 61, Code, Section Article Chapter 1931, as amended by Chapter Acts Legislature, 1933, Ex- Second Session, contains traordinary provisions: these “If any force, by threat, person, diiress, or en- fraud take, confine, ticement conceal, or or en- decoy, inveigle tice away, transport or into or of out this State or within State, or any otherwise other for the kidnap person, or the intent purpose taking, with of demand- receiving, or from ing extorting person, such or from any per- other persons, ransom, son or any or money any other or thing, advantage sort, concession or of or for any the purpose or with the intent or shielding or himself protecting others from harm bodily or of evading capture or arrest after he or have they crime, committed he shall be and, of a guilty conviction, felony, upon pun- shall be Provided, ished death: the jury that in may, their discretion, find by that be in punished: confinement find, if the penitentiary, the pun- so he shall be in confinement the by ished his life: penitentiary during that, further, Provided all cases where the person returned, whom the offense is committed or against is return, alive, to without permitted bodily is serious harm upon him, been inflicted after having ransom, but money 'other or thing, any or or concession advantage any or yielded, punishment has been the be paid sort shall in the for penitentiary any years confinement term of further, twenty: than Provided that not less all cases against whom the offense is person committed where returned, return, alive, permitted or is to without him, having harm been inflicted bodily upon serious but or ransom, money thing, any other or concession any sort been or advantage having paid yielded, be confinement in the shall punishment penitentiary ten.” not less than years term of any 14b, of chapter, provides same article and Section 14a shall of the offense created Section venue taken, or induced county lie where the was person where county kidnapped, or otherwise go away detained, county through or in the held person such or transported. was conducted which State, creates of this Though foregoing statute interpreted has not been kidnapping, the crime though of this Court decision applied prior concerning the this Court there no' pronouncement effect of the provisions offense or the character may imposed be relating punishment the verdict guilty by found a defendiant who has been creating federal statute of a a somewhat similar jury, U.S.C.A., has been kidnapping, crime in numerous cases with the federal courts considered the effect of of the offense and to the character respect relating punishment of that statute provisions may imposed. *7 con- statute, the extent here pertinent, The federal “(a) trans- knowingly Whoever tains these provisions: commerce, any or who foreign in interstate ports seized, confined, decoyed, inveigled, unlawfully has been carried and held for ransom abducted, away or kidnaped, minor, otherwise, a in the case of except, or or reward (1) death if the thereof, by shall punished be parent unharmed, not liberated has been kidnaped person recommend, (2) by shall so jury if of the the verdict life, or for if the years for term imprisonment imposed.” death penalty the federal statute question whether Concerning creates more imposed to be punishment providing offense, the single holding one only offense or than one by necessary courts, expressly implica- the federal creates a single federal statute tion, that death if punished shall kidnapping, evidence .at the trial shows that and the recommends so in a harmed condition released but the victim was if the evidence by imprisonment punished he shall be
473 at the trial shows that the victim was released unharmed.
Smith
States,
v. United
1,
360 U. S.
79
991,
S. Ct.
3 L. Ed.
2d 1041; United States
Parrino,
2 cir.,
613;
180 F. 2d
Robinson
States,
v. United
cir.,
6
144
392;
F. 2d
affirmed,
282,
U. S.
666,
65 S. Ct.
89 L. Ed.
rehearing denied,
328 U. S.
S. Ct.
L. Ed.
United States
Parker,
3 cir.,
103 F. 2d
certiorari denied, 307 U. S.
642, 59
S. Ct.
In Smith v. States, United 360 U. S. 79 S. Ct. L. Ed. 2d in which the was principal question whether the crime with which charged the accused was tried an information, instead of an indict- ment, was a single capital statute, offense under the prosecution of which must be by indictment, the Supreme Court States, of the United three judges held dissenting, that the federal statute creates the single offense of trans- porting victim kidnapping across state lines and that being capital offense punishable death, must be an prosecuted by indictment, even though the imposition the death penalty depends upon whether sufficient proof the victim was released in a harmed condition is introduced during the trial. In the opinion the court used language:
“The charging part information against petitioner stated that he ‘did knowingly transport interstate com- wit, merce ... a person, to Alan Jr., W. Spearman, who had been unlawfully seized, kidnaped, abducted, and car- ried away held the safe conduct of the three de- fendants . . . .’ The charge did not state whether Spear- man was released harmed or unharmed.
“It been held by has two Courts of Appeals that in- similar in terms to dictments' charge here were suffi- *8 cient to support capital punishments despite the absence that the allegations kidnapping victims were released (CA harmed. United States v. Parrino 2 NY) F180 2d (CA6 Robinson v. United States Ky) F 2d 392. (CA Cf. United States v. Parker 3 NJ) F103 2d 857. contends holdings Petitioner that these of his dispose case because make clear that the they statute creates a may offense of
single kidnapping punished by- which trial, death if the at that the victim prosecution, shows in a was released harmed condition. The Government however, claims, that a con- specific kidnapping whether a examination of the capital requires stitutes determine whether the victim was released evidence to unharmed; words, in other that the harmed statute harm, kidnapping creates two offenses: which is a term of punishable by years, kidnapping with Further, harm, death. punishable by which Gov- filing ernment contends that the mere of an information States eliminated the ele- Attorney capital the United ment crime. of Appeals
“The Courts which have been concerned the statute have construed it create uniformly with a transporting offense of victim single kidnapping agree state We with construction. Under across lines. statute, punishable by that offense is if certain death at trial. an charged, is introduced When accused is proof here, transporting kidnapping victim across be tried an offense lines, charged he is and will state Although death. may punished imposi- which be on sufficient depend tion of that will whether penalty trial, that during harm introduced circum- is- proof alter fact that the offense itself is does not stance death and thus must may punished by one be be words, In other when the by indictment. prosecuted charged sufficiently justify capital broad offense as basis, verdict, though on that even proceed the trial must that such a verdict cannot later establishes the evidence released unharmed.” because the victim was be sustained Parrino, cir., F. 2d con United States in contention the defendant with the nection returned verdict dictment, years five was twenty imposed a sentence guilty in that court, insufficient did state all charged, and with relation of the crime the essentials statute, under the imposed punishment to the agree these statements: “We contains opinion *9 475 charged, crimes stated all essentials of the the the victim to that necessary allege and that it not was might that order the was not released ‘unharmed’ allegation going That is an the penalty. recommend death has and, the accused although only punishment, the must it, pass the jury advised since adequately information it, if enough gets it will be upon allega- Indeed, though even season from source. itself, the the crime tion of the elements of touched one ‘variance,’ and worst failure to include it would be at the accused rights,’ ‘not affect if were would substantial advance to answer.” given adequate opportunity States, cir., Robinson v. United 6 144 F. 2d affirmed, 324 U. Ct. S. 89 L. Ed. rehear denied, ing U. S. S. Ct. 90 L. Ed. U.S.C.A., for under 18
prosecution kidnapping section 408a, statute effect kidnapping before was U.S.C.A., amended in connection with the contention of the accused that the count kidnapping ffilege did! not that the victim was from the liberated unharmed, custody defendant’s contains this opinion language: only charged count not statutory
“This elements wit, that to' defendants named therein and her in transported Mrs. Stoll interstate kidnaped ransom, her commerce and held but it went further they that she was in their did alleged, custody while ‘beat, and harm and aid and injure, bruise abet each beating, injuring, bruising harming said other not and did liberate her It Stoll unharmed.’ Mrs. Alice therefore, demurrer, manifest, that as to this fea- demurrer’ and is bad. ture, ‘speaking ais goes alleges, further that the phrase “But appellant her unharmed’ was too indefinite ‘and did not liberate indictment; that the word ‘harmed’ admits for the basis slight from meaning grave, and degrees of varying entitled to be advised was indict- appellant injuries the Government would particular ment as to what Mrs. Stoll at or inflicted before the had been insist time was she liberated. again We out point ‘and phrase did liberate her unharmed’ did not state an part essential of the offense might charged. Appellant have been convicted any showing that Mrs. Stoll all; or, was liberated at if she was, whether she set free unsound, either sound or in mind or body. *10 punishment provided by statute varied im- from prisonment from one year life, to in the discretion of the court, to a death ‘if sentence the verdict of the jury recommend!,’ should so and determining whether it would recommend capital punishment, en- jury was titled to know from the evidence to what extent aggra- vation reason, doubt, was involved. It was for this no- that the phrase that the ‘provided sentence of death shall if, not imposed by be court to prior imposition, its the kidnaped has been person liberated unharmed’ was in both the statute- incorporated and the indictment. It a basis for as proof furnishes to what extent the offense aggravated. was States, Cir., See Seadlund v. United 7 742, 97 F. 2d 748.” light holdings of the federal courts in the
above cited cases concerning character of the crime of kidnapping provisions regarding and the the punish- be ment to imposed an upon accused has been who found of that guilty offense the verdict of the jury, is clear 14a, that the statute, 2, Code, Chapter 61, Article amended, as a single not, creates capital offense and contends, as the petitioner three and distinct separate offenses; and that the indictment which the upon peti- tioner tried sufficiently and convicted charges single capital offense created the statute.
It significant is that the provisions of statute of this dealing punishments with of not less than twenty ten years years and less than that “in state all cases where the whom the against is committed offense returned, return, alive, permitted bodily having serious harm been upon him,” inflicted shall those periods be for punishment respective of not twenty years. than and ten language less This indicates enacting kidnapping Legislature, clearly offense single one create statute, to create and did intended and 'deter dependent different punishments with and that it is committed mined the manner dis or more separate not create two the statute did 46, 144 Masters, 106 v. offenses. See State tinct 368; 123, 132 E. Perry, S. 101 W. Va. 718; S. E. State v. 451; State 213, 130 S. E. Joseph, 100 W. Va. State v. E. Ann. 1918A
Wetzel, Cas. 75 W. Va. 129 Kan. Razey, State, State v. v. The Conley (Emphasis supplied). P. A.L.R. 1225. holding Perry, S. E. In State 101W. Va. one count containing an indictment sufficient feloniously unlawfully and the defendant charged feloniously did writing and forged a certain described genuine, as true and the same attempt employ alter and defraud, intent forged, it to with knowing connected acts several and 'distinct Court said: “When to the same subject the same general crimes distinct separately are penalty punishable *11 con- may be they different .persons, committed where offense, of the same steps stages as representing sidered the count, committed in the same when and combined time.” at the same parson same 451, in 130 S. E. Joseph,
In State counts, count on contained two the the indictment which charged tried and convicted the defendant was and owning, maintaining, possessing operating, him with still. In the rejecting in a moonshine an interest having the the indict- defendant count of contention of the one the of more than him with commission charged ment “* * * a statute provides said where offense, this Court committed in several different may an offense be the comimission of such charged with may one be ways, ways, may charged of such be one offense count, having with committed in the same conjunctively, enumerated in the statute. ways the in all of the one offense. State v. Wester. charging only This would Kan. 810.” In v. Wetzel, 75 W. 83 S. E. Cas. Ann. 1918A this Court indictment, held that an charging defendant, a bank, cashier of a with money embezzling belonging the bank at various times a during period approximately years three and stating aggregate amount of the sums, only various act charged single of embezzlement.
In the early Conley State, case of this Court likewise held that an indictment charging defendant with the of spirituous sale liquors without license at his and storehouse house in a dwelling desig- nated town and not county charge did two distinct sales at different places merely but described the store and dwelling house as constituting building one and one and place. same
In State v. Razey,
129 Kan.
The provisions of the statute to the various relating punishments to be imposed upon person convicted the offense kidnapping and which punishments depend upon governed and are the evidence at the introduced trial, do not state or prescribe element any of the offense created the statute. Those are provisions ac- cused conviction upon shall be punished by death but that the inmay its discretion jury find that he be con- fined in the and if penitentiary, so find he shall jury punished penitentiary confinement his during life; that in all cases where the person against whom committed, returned, is is or is to re- permitted turn, alive, bodily without serious harm been having him, inflicted upon ransom, but after or money other thing, or a advantage concession or sort any has been or paid yielded, punishment shall be confinement in the penitentiary for term of not any years less than twenty; and that in all where cases against committed, returned, whom the offense is or per- return, alive, mitted to without harm bodily serious hav- him, ing ransom, been inflicted but upon money or other or concession thing, any advantage any or having yielded', sort been shall be paid punishment confinement in the for term of penitentiary years statutory ten. foregoing provisions less than As the do not relating prescribe state de:- punishment of the crime of grees or essential elements kidnapping, any finding to make required respect is not imposed, to the to be case punishment except be punished by which it finds that the accused should for life. penitentiary confinement in There is differ- ence a verdict of requirements guilty between murder and of a verdict of guilty an *13 480 an indictment for The reason for
upon,
kidnapping.
statute,
difference is that in case of murder the
Section
15,
3,
62,
Code, 1931, unlike
Chapter
kidnapping
Article
statute,
if
indicted
it
a
requires
jury,
finds
in
for murder to be
to state
its verdict whether
guilty,
second
Likewise
guilty
degree.
he is
first
murder,
ac-
jury
under an indictment for
if the
finds the
cused
of
is included within
guilty
(manslaughter which
jury
such indictment
must
verdict whether
state
its
manslaughter
guilty
voluntary
involuntary
he is
and dis
separate
for
reason that
those offenses are
homicide,
tinct,
and are
degrees
constitute different
Foley, 131
subject to different
See State v.
punishments.
274,
326,
40;
McCoy,
2d
State v.
95 W.
W. Va.
47 S. E.
Va.
681;
323, 114 E.
597;
Frey,
120 E.
State v.
92 W.
S.
S.
Va.
Vineyard,
293,
v.
440. In State
State
85 W.
101 S. E.
an
Vineyard,
v.
101 S. E.
on
indictment
murder,
a
of mur
returning
acquittal
after
verdict of
manslaughter,
der and
found the de
voluntary
as
in the
but stated
guilty
charged
fendant
indictment
involuntary manslaughter
it
did not decide between
verdict
battery.
(cid:127)and assault and
This Court held such
defendant of any
because it did not convict
void
in that
these
offense. The
case contains
opinion
specific
re
“Except
instances
statute
statements:
it,
as
in an indictment
guilty
charged
a verdict of
quires
others,
necessarily
for an
includes
is suffici
offense which
not,
cases,
the offense
ently
specify
certain.
It need
Moody
to do so.
or the
unless
statute
it
degree,
requires
Gilbert,
108;
State,
337; People
v.
60 Cal.
W. Va.
Robb, 90
Treadwell,
513;
Mo. 30.”
54 Kans.
State v.
State, 1
v. The
Moody
case
and Koons
early
“A
is in these words:
syllabus
1 of the
point
indictment,’
good,
is
charged
‘guilty
verdict of
as
contain more than one count.”
although may
14a, Article
as the
provisions
Inasmuch
amended,
to' the differ-
61, Code,
relating
Chapter
person who
imposed
ent
to be
punishments
do not state
the offense of kidnapping,
guilty
found
in an
charged
the offense
element of
or prescribe
for such offense, it
necessary
allege
or deny the matters mentioned in those provisions,
presence or absence
which,
according to the proof,
controls and determines
the character and the extent of
the punishment
imposed. Smith
States,
v. United
360 U.S.
79 S. Ct.
3 L. Ed.
2d
United States v.
Parrino,
cir.,
F. 2d
Robinson v. United States,
*14
cir.,
6
392;
144 F.
affirmed,
2d
282,
324
666,
U.S.
65 S. Ct.
944;
89 L. Ed.
rehearing denied,
878,
328 U.S.
66 S. Ct.
1017,
The general rule recognized and applied many de- cisions of this Court is that an indictment for a statutory if, is sufficient charging offense, it adopts and follows the language 'Ofthe statute, or uses substan- tially equivalent language, and plainly informs the ac- cused of the particular offense charged and enables court to determine the statute on which the charge is founded. State Johnson, v. 134 357, W. Va. 59 485; S. E. 2d Lewis, State v. 584, 133 W. Va. 57 513; S. E. 2d State v. The Greater Theater Huntington Corporation, 133 W. Va. 252, 681; 55 S. E. Taylor, 2d State v. 74, 130 W. Va. 42 S. E. 549; LaRosa, 2d 634, State v. 129 W. 41 121; Va. S. E. 2d Crummitt, State 366, v. 129 W. Va. 40 S. E. 852; 2d State Lucas, 324, v. 129 40 817; W. Va. S. E. Hudson, 2d State v. 655, 553,
128 W. 37 S. E. 2d 163 1265; Va. A.L.R. State v. McCoy, 54, 89; 122 7 E. 2d denied, W. Va. S. certiorari 311 59, 441; 683, U. S. 61 S. Ct. 85 L. Ed. State v. Tenney, 117 342, 468; Wimmer, E. v. W. Va. 185 S. State 498, 117 W. Va. 133, 67; E. Mowery, 186 S. 105 A.L.R. State v. 115 W. Va. 445, 851; 74, Keiffer, v. 112 176 S. E. State W. 163 Va. S. E. Nazel, 841; 617, v. 109 W. 45; State Va. 156 S. E. State v. Williams, 525, 852; 108 W. 151 S. E. v. McKinney, Va. State 604; 299, Masters, S. E. State v. 106 W. Va. 145 106 W. Va. 46, 718; Boggs, 641, 144 E. State v. 103 W. S. Va. 138 S. E. Brown, 160, 366; 101 132 321; State v. W. Va. S. E. State 213, 451; Hudson, 100 130 S. E. State v. Joseph, W. Va. v. Lantz, 122; E. State v. 90 435, 117 S. W. Va.
93 W. Va. 766, 894; Constable, State v. 738, 111 E. 26 A.L.R. 90 S. 410; Chafin, 112 State v. 78 S. E. W. Va. W. Va. Johnson, 657; 62 Va. 57 S. E. E. State v. W.
482 1025, 11L.R.A., N.S., 872; Jones, v.
58 S. E. State 53 W. Va. 916; Pennington, State v. S. E. 423; 918; Boggess, E. 15 S. E. State v. 36 W. Va. S. Schnelle, Gould, 258; 24 W. 26 W. State v. Va. State C.J.S., Indictments Riffe, Informations, of the allegations and Section 139c. The as the substantially indictment and are the same follow foregoing require statute and language satisfy offense. statutory ment of an indictment The acts of sufficiently charges several or to- singly Monongalia County petitioner crime statutory constitute commission gether in- county. kidnapping by petitioner un- that the did charges petitioner dictment specifically threat, duress, fraud force, feloniously, by and lawfully conceal, enticement, take, confine, decoy, inveigle, transport, within away kidnap entice and otherwise in that 'and detain did hold Monongalia County, and consent, his John his will and without county, against taking the intent Nine, for and with the purpose thing and other concession demanding advantage, *15 also, wea- dangerous and with a from John W. Nine did threaten and force John unlawfully feloniously, and pon, consent, to Nine, and his his will against County, West Vir- from Preston transport petitioner to the County, Virginia, West Monongalia to and ginia, petitioner. other of the thing and advantage, concession confining, taking, acts of one all of the Any specified and other- away inveigling, enticing decoying, concealing, holding and and de- transporting, and kidnapping wise will, Monongalia County, victim, his against taining It offense. statutory constituted together, singly petitioner states that the indictment also that the is true duress, force, threat, feloniously, by and unlawfully did take, confine, inveigle, con- enticement, decoy, and fraud Nine in John W. kidnap and otherwise away ceal, entice also, a dan- did with Virginia, and County, West Preston threaten and feloniously and unlawfully weapon, gerous his con- his will and without Nine, against John W. force County, from Preston the petitioner sent, transport to Virginia, West to and in Monongalia County, West Vir- It ginia. necessary, however, charge was or prove the acts committed by petitioner County in Preston him of the charged against convict acts him com- and by mitted him in Monongalia County which constitute the offense for which tried and convicted that criminal acts county. The him in Preston committed County did not affect the charge of offense in Mon- ¡of ongalia County and did not form the basis his convic- tion in Monongalia resulted County entirely from and was upon based the acts committed him in that county.
An 14a, indictment based Article Chap- 61, Code, 1931, ter amended, charges which specifically force, the accused did and unlawfully feloniously, by threat, duress, enticement, confine, fraud and take, con- ceal, decoy, inveigle, entice and away kidnap otherwise and transport, within Monongalia County, and did hold and detain in that his county, against will and without consent, his a designated for the and person, purpose with the intent of and taking demanding advantage, conces- ,and also, sion other thing from such -and did with person, a dangerous unlawfully feloniously, threaten weapon, and force against his will without his person, consent, to the accused Preston transport County, from and in Virginia, Monongalia County, West West Vir- to the concession .and other ginia, advantage, thing accused, charges also the accused of some of the same acts Preston County, commission the commission in sufficiently charges accused with offense of single Monongalia County kidnapping the statute and is valid indictment created statutory offense. the criminal in the indictment of acts allegations *16 in Preston are not County
committed the accused the acts committed or inconsistent with repugnant immaterial, are unneces- County, him in but Monongalia have been which could averments sary and harmless indictment; allegations should such omitted from the 484
foe considered and
as
rejected
State v. Mc
surplusage.
Graw,
547,
140 W. Va.
By statute and by numerous decisions of this Court
matter
surplus
does not
an
vitiate
indictment which
charges an offense in the
language
statute
which
10,
62,
creates such offense.
2,
Article
Chapter
Code, 1931, provides, in part, that
no
or other
accusation shall be
or deemed
quashed
invalid for the
omission or the insertion of
other
of mere
words
form or
This
surplusage.
Court has said in
deci-
many
sions
an indictment
an
charges
which
language
the statute which creates such offense will
not be held to be invalid because it contains surplus
Criss,
matter. State v.
125
225,
613;
W. Va.
23 S. E. 2d
State
v. Boggs,
103
321;
W. Va.
Perry,
E.
State v.
101
368;
W.
132
Merico,
Va.
S. E.
77
State
W. Va.
370;
Jarrell,
S.
87 E.
State v.
76 W. Va.
85 S. E.
525;
McClung,
State v.
S. E.
Hall,
Lusk,
State v.
Though the indictment upon which the petitioner was tried and acts, convicted alleges numerous singly which and together offense, constitute one and the same all such may acts charged count of an single indict ment and' prosecution, general rule, will not be required to elect upon charge it will proceed try the accused. State v. Joseph, S. E. this Court held in syllabus 5 of point “Where a statute enunciates a series acts, either of separately together all may constitute the off ense, all of may such acts be charged in a single count, that, for the reason each notwithstanding act may by itself constitute all of them together do no more, and likewise constitute but one and the same case, offense. In the prosecution, rule, as a general *17 will be to an election.” The in put opinion that case contains these paragraphs: rule is in (2nd Ed),
“The
stated
on
Joyce
Indictments
575, that,
section
if two or more offenses form
of one
part
transaction, and are of such a nature that the defendant
may
guilty
oil,
be
of both or
not be
prosecution will
to an
put
election. So in a case in New York it is de
that,
cided
where an offense
committed
may
by doing
be
any one of several things the indictment
in a
may,
single
count,
together
them
group
charge the defendant
to
have committed them all and a
may
conviction
be had on
any
commission of
proof
things,
one
of the commission of the
Bork
proof
People,
others.
v.
“It is a well when a statute enunciates a acts, either of which separately series or all together offense, may constitute the all of such may acts count, in a for the reason charged single that, notwith- may by each act itself constitute the standing offense, all more, no together of them do and likewise constitute but Gusti, People one and the same offense. Cal. Territory, Wharton,
Flohr v. 14 Okla. Mr. in 477. his work (9th Pleading Ed), on Criminal and Practice sec. a
states the law as follows: ‘When statute makes two more distinct acts connected with the same transaction indictable, may rep- each one which be considered as it has resenting same been ruled phase ” in may be one many they coupled in cases that count.’ Masters, 106 Va. S. E. the de- count for the indicted one violation of a fendant was vehicle, operator case required statute which accident, stop immediately request give of an name, operator’s the number of his license his address and may be reasonable or and to render assistance sufficiency case necessary. on challenged that it ground charged three sep- arate and distinct in one count. In holding offenses indictment valid this Court “In opinion: said case accident, where the operator of motor vehicle fails stop immediately, offense; he is an if he guilty of does stop, and then making attempt drives on without render assistance he must have seen was reason- and necessary, guilty offense; able he is still of an and if *18 assistance, stops refuses, and renders upon request, but name, to give his address and number of his operator’s license, this, also, an he merely constitutes offense. But if on, making attempt give drives no render assistance or name, operator’s license, his address and number of his offense, transaction one only whole involves and calls for the of a imposition single but When a penalty. stat- ute makes or more two distinct acts connected with the transaction, nature, same or of the indict- general same able, each of may represent- one which be considered as offense, a in the ing phase they may same coupled be count, one and under the rules criminal pleading courts, our criminal it practice the established is com- petent indictment, for the form of to find jury, under this acts, the defendant of one or more of guilty such distinct Miller, as State may warrant. v. 89 W. Va. State proofs Jarrell, Calhoun, 76 W. Va. 67 W. 666.” Merico, In State v. 87 S. E. Court this syllabus held in Point 1 of the that “An indictment a unlawfully carrying pistol without a state license is good it in a notwithstanding charges single that, count at time, the same defendant carried all the other weapons forbidden to be carried.” by statute
In 5 Criminal and Procedure, Wharton’s Law Ander- son, Section the text uses language: this “It is the that an general rule information for viola- offense, tion of a statute creates one only speci- which but acts, transactions, fies several different or means may committed, may be properly allege offense in accused, one count by charging conjunctive terms, things specified or all of the in the doing statute, is made in the especially charge when language In Jur., the statute.” 27 Am. Indictments and Informa tions, Section the same rule is stated the identical contained in language the foregoing quotation. Joyce on Indictments, contains, the text others,
among provisions: these “Where acts omission or commission are component parts represent prelim- inary transaction, stages single them out set is not to charge separate crimes. And it is a rule general where several acts to constitute an go indict- offense.an ment are a charging part acts where same they * * * transaction is not duplicitous. on this account . So where statute makes two or more distinct acts commit- indictable, ted with the same transaction each one of may be considered as in the representing phase same may different acts in one coupled count and it not regarded join thus to duplicity suc- cessive statutory phases of the offense. And same rule is well other supported settled and is numerous decisions.” already
As indicated the allegation single count indictment of the numerous acts committed *19 petitioner in commit- Monongalia County and of the acts ted him in to- by County, Preston all of and singly which gether offense, proper constitute one and did not re- was in any prejudice any right sult to of the for the petitioner, reason, in Jos- point syllabus as stated 5 of the in State v.
eph, “notwithstanding 130 E. S. that each act the all of them may by itself constitute one together more, do no constitute but and likewise the same offense.”
Even if the various the charged against petitioner acts in joinder constituted the of such offenses separate offenses in one indictment not separate operate counts would Larue, prejudice the of State v. the accused. E. held in point 116. that case this Court in one syllabus separate
of the “A counts joinder that in offenses, distinct though indictment of several law, substantially of the same point yet spring out transaction, to the the operate legal prejudice cannot accused; and he is not entitled as a matter of right such compel an election.” case The the allegations charging various the in Monon- acts committed specific petitioner County, particularly confining, the acts of galia taking, transporting, holding and the concealing, detaining vic county, sufficiently tim that inform the accused of the the him and against character and cause of accusation the Article satisfy requirement imposed III, of the of this State that in all trials of Constitution fully the crimes and misdemeanors accused shall be character and of the accusa plainly informed of the cause trial upon If the felt that additional petitioner tion. him to him to given information should have been enable defense to the accusation or to inform him proper make act for upon by of the or acts relied the State particular moved the court to require conviction could have and to elect the particulars speci State to furnish a bill in fic act or acts relied conviction. The upon of the the trial complete proceedings upon record error this Court this writ of indictment now before denied any not that such motions were made or does show in con exception petitioner taken any action; and in that state of the rec nection petitioner did ord it assumed may properly in sufficiency allegations challenge the character and cause of the accus concerning dictment ation. charge pe- of the indictment which allegations specific of numerous and the commission
titioner with the acts of tak- Monongalia County, particularly acts and de- concealing, transporting, holding ing, confining, victim, Nine, Monongalia County, John W. taining county. in that the offense lay the venue of are sufficient satisfy requirement completely also allegations Those 14b, 2, Chapter Article of Section provisions *20 of of the offense amended, that the venue Code, 1931, al- county person in the where shall lie kidnapping detained, or in held or kidnapped was leged to have been conducted or person was through county They transported. fully likewise with the re- comply of Section quirement III, Article of the Constitution of State, crimes, this that trials of and misdemeanors, unless therein otherwise provided, shall be county where alleged committed, offense was upon petition unless accused, and for shown, cause good the trial of the is removed to some other county. imposed
The sentence upon of petitioner confine- ment in the penitentiary period for of sixty years is authorized the provisions of kidnapping statute which relate to the of imposition punishment upon con- viction of that offense. statute provides expressly all that in person cases where the against whom the of- is committed, returned, fense return, or is to permitted alive, bodily harm serious been having inflicted him, ransom, upon but after thing, or other or money any or concession advantage any paid sort shall be or yielded, the punishment be' in the peni- shall confinement tentiary for any years term twenty, not than less that in all returned, cases or where such is per- return, to alive, mitted bodily without serious harm hav- ing him, ransom, been inflicted upon but without money or other or thing, advantage any concession or any sort been having paid yielded, punishment or shall be con- in penitentiary years finement term not than ten. from less It the notation at the foot of appears victim, Nine, the indictment gave John evi- dence before the grand jury connection with the of- May 1, 1961, on fense and in view of that fact it is clear returned, return, alive, was was to permitted or bodily having harm presumably without serious been upon victim, though inflicted him. returned Whether or permitted return, presumably alive and without bod- him, harm ily having required been inflicted upon pay yield ransom, money or or other was not re- thing or ransom, does quired pay yield money thing, other that the not from the record for the evi- appear reason trial, dence introduced been made having upon part record, can not be determined writ event, however, Court of error. either the Circuit
490 County, provisions under statute
Monongalia impose had punishment, jurisdiction relating penitentiary sixty confinement sentence of contrary it showing In the absence years. and justi- that the evidence supported be presumed will circuit court. by the imposed fied the sentence of a is well established when record law general jurisdiction merely respect court of silent affecting jurisdiction regularity to a matter its or the it presumption its satisfied com- procedure, jurisdictional procedural requirements with all plied accorded entry judgment pre- for the a valid will be Boles, ex rel. Ashworth v. force and effect. State vailing Mitchell, 13, 634; 148 132 E. 2d Bowles v. 146 W. Va. S. W. Daraban, 474, 697; v. 145 120 S. E. 2d Rollins W. Va. Va. 178, 369; Pennybacker, E. State ex rel. Black v. 113 S. 2d 612, 265; Browning 144 E. 2d ex rel. v. W. Va. 110 S. State Tucker, 830, 740; 142 98 S. E. 2d Lieberman v. Lie- W. Va. Adkins, berman, 716, 275; 142 Adkins W. 98 S. E. 2d v. Va. 646, 789; Lovejoy 142 97 S. E. 2d State ex rel. v. W. Va. Skeen, 901, 456, denied, E. 138 W. 78 S. 2d certiorari Va. 1268; 940, 786, Lemley Ct. 99 L. Ed. v. Wet 349 U. S. 75 S. 646; Company, 153, Coke 82 95 S. E. zel Coal and W. Va. Lowe, 21 782. Point 1 of the syllabus State v. “The language: power case contains Lemley particular subject over a mat jurisdiction a court having decree the same can judgment affecting ter to render a from the collaterally, appears attacked unless judgment or decree proceeding record of the in which A jurisdiction.” court acted is entered that the for a is not a substitute writ corpus proceeding habeas judgment and a valid appellate process, error or other has in a in which court proceeding entered criminal and the can not parties matter jurisdiction subject proceeding. a habeas corpus be assailed or disturbed in Boles, 229, 134 S. E. ex rel. Nicholson v. 148 W. Va. State Skeen, 901, 78 v. 138 W. Va. Lovejoy 2d State ex rel. 786, denied, 940, 349 U. S. 75 S. Ct. 456, S. E. certiorari 2d Adams, 144 99 L. ex rel. Clark Ed. denied, 528, certiorari 771, 336, 111 A.L.R. 2d S. E. 2d 89 807, 363 U. S. 80 S. Ct. 4 L. Ed. 2d many and the cases cited the opinion in that case.
In State ex rel. Lovejoy Skeen,
E. 2d
certiorari denied, U.
S.
75 S. Ct.
L. Ed.
this Court held in
point
of the syllabus that
“A conviction and sentence
of a
in a court of com
petent
jurisdiction,
in the absence of a showing that the
judgment wholly
or partially void, will not be reviewed
ain
proceeding
habeas
corpus.”
the opinion in that
*22
case this Court said: “A
proceeding
habeas corpus is
generally, but not in all instances, a collateral attack upon
a former
by
judgment,
virtue of
is con
fined in prison. The instant proceeding is a collateral at
tack on the judgment of the
Circuit Court
Logan
County
sentencing
petitioner to
imprisonment.
life
‘A
judgment, valid on its face and rendered by a court of
general
jurisdiction
jurisdiction
having
parties
both
and subject matter,
not
open
collateral attack.’ Crick
mer
Thomas,
120 W. Va.
353;
200 S. E.
Newhart v.
Pennybacker,
120W.
E. 350;
Va.
Starcher v. Oil
* * *
Co., 81
S. E.
Ex Parte
44 S. E.
Ex
Parte Mooney,
The judgment of the Circuit of Monongalia Court County, which sentenced the petitioner imprisonment in the penitentiary period sixty years, for a is a valid judgment and it to collateral attack in a subject habeas corpus proceeding.
The judgment County of the Circuit Court of Marshall is reversed and set aside and this is remanded proceeding to that court cor- with directions that writ of habeas pus heretofore issued it be forthwith discharged the petitioner custody defendant. remanded remanded
Reversed and with directions.
Calhoun, Judge, dissenting:
Very respectfully I dissent. With to my deference as- sociates, I state that I believe the majority opinion glar- ingly violates various fundamental legal con- principles, stitutional and otherwise; and pertinent that no authority justification for its can be found in this or any other state. I agree with the holding of the Court in reference to questions concerning venue jurisdiction. My dissent relates to matters affecting validity indictment, of the sentence, verdict and when such parts the record are considered both separately and as a whole.
Perhaps our initial disagreement stems from the hold- ing, summarized in the first point syllabus, that the statute creates but one offense. I am to compre- unable hend a single how grades or degrees, may have various penalties.
It may involve a quibbling over terminology to dispute whether the statute creates more than one offense; or whether, on hand, the other creates single offense having different degrees or grades with different penal- ties. In either event, a determination of which category *23 the defendant’s offense falls into involves of question fact. A novel and startling feature of the majority opin- ion is that it apparently the leaves to trial judge, under the verdict, general to determine that issue; factual takes from the accused the to have that right vital factual issue determined I jury. believe that this funda- mental issue of fact involves sufficiency the indict- ment, the verdict and the or sentence judgment.
“A verdict is the jury definitive answer and is sufficient in form if it decides the in question issue wise as to enable the court judgment.” to enter 23A C.J.S., Law, Criminal 1393, Section 1054. A page verdict must be responsive to and It charged. cover offense is always necessary entering judgment before on the ver- dict that it or appear jury what the found intended to find. Commonwealth, Williams 151 S. E. Va. State v. E. Frey, pt. syl., 114 S. 681. “A W. Va.
CO-CO
verdict of guilty need not specify degree
the crime
of which accused is convicted, where a particular degree
only is charged submitted,
indictment or
as where
the indictment charges only degree
lowest
If, however,
crime.
a particular degree of an offense is
charged, and the jury desires to find accused
of a
guilty
degree,
lesser
the degree should
specified.
Such a ver
dict should
every
show
element
offense;
lesser
but
it is generally sufficient to describe the
statute,
words
or their equivalents, and it has been
held sufficient to refer to it by its statutory name.” 23A
C.J.S.,
Law,
Criminal
Section
1099.
page
A verdict
of a
in a
criminal case must always be read in con
nection with the indictment. The indictment, verdict and
judgment in a criminal prosecution should be sufficiently
definite, certain and specific to identify the crime in
volved. State Gargiliana,
387-88,
E.
2d
271. “The judgment and sentence must be re
to,
sponsive
and in
with,
accord
the verdict of
jury.”
24 C.J.S.,
Law,
Criminal
page 544. See also
State v. Moneypenny,
81 W.
1pt.
syl.,
In summary, the indictment, verdict and sentence or judgment must on be sufficient their to disclose their face complete harmony responsiveness to each other. It impossible in this the indictment, case look at verdict and sentence severally, toor look at the three as a whole and determine offense, specifically what de- what an gree offense, the accused was sent to peniten- tiary.
I have undertaken to examine all prior decisions of this Court opinion. cited in the I majority have not found case which this Court has held that a statute creates a single offense where the statute has defined different factual calling situations for different penalties. I have not found a held, case in which Court has case of a nature, statute of this that an indictment or verdict is suf- ficient the exact specifying degree of *24 I offense. do not believe such a case can be found.
We are not concerned here with the doctrine of “in- cluded offenses” under which it is held that a charge
49,4
the greater includes a charge of the lesser offense. State Henson, v. 91 701, 1 114 State v. pt. syl., 273; Va. S. E. Murdpck, 90 628, pt. 1 111 State v. syl., 632; W. Va. S. E. Tomlin, 300, 86 W. 2 syl., State v. 110; 103 E. pt. S. Douglass, 41 537, 1pt. State v. syl., W. Va. 23 S. E. Howes, 110; M.J., 26 W. Va. 9 Indictments, Informations Presentments, 29, In page cases, 677. all such however, must, the jury verdict, specify its the lesser offense of accused has I guilty. been found am of any aware case which has authorized the trial judge to make that factual determination following the re turn a general verdict.
I believe cases cited the majority opinion for proposition that the statute a single creates offense are clearly distinguishable. Generally speaking, statutes under consideration in such cases a involved definition ways offense, various a single with a single pen- Masters, State v. alty, might be committed. 106 W. Va. 46, 718, involving, S. E. a “hit and charge under statute,” 49) run Court (106 stated W. Va. at page offense, only “the whole transaction involves one and calls single a of but for the imposition penalty(Italics sup- Miller, State v. 487, E. in- plied.) 89 W. Va. 108 S. sell, offer, a charge give, volved defendant did keep and store for sale alcoholic under a statute liquors To defining single single penalty. thus with a Calhoun, see State v. effect same Miller, State v. State E. 108 S. E. W. Va. 487. Perry, charge 132 S. E. involved a W. Va. single forgery count of both Court uttering. (101 125-26): stated at “When several and pages W. Va. general distinct connected offense and acts same subject penalty to the same punishable separately are per- committed different and as distinct crimes where sons, steps they may representing be considered and combined same stages same at the count, the same same when committed Joseph, (Italics time.” supplied.) charge owning, operating, 130 S. E. involved in a moon- an interest of or maintaining, having possession *25 495 shine a still, under statute which created a single offense a single penalty. See also Garcia, State v. 140 W. 185, 191, Va. 528, 83 E. 2d S. 531. v. Wetzel, State 75 W. Va.
7, 68, E. a involved a charge that bank cashier em- bezzled money of bank between dates, different des- ignating aggregate amount. The Court held that but a single offense embezzlement was charged; and, of course, only penalty one was involved. To the ef- same fect, Larue, see State 677, v. 98 128 W. Va. S. E. Con- 116.
ley State, v. 522, 5 a W. Va. charge involved ac- cused sold at liquor his at dwelling and his store.
Court held effect that the of the charge towas that the store and dwelling were in same building and that, therefore, a but single charged. offense was
I have examined other Haskins, cases. State W. 92 632, 636, Va. 115 E. S. Court stated: “These counts for the being same and the purpose meeting the phases various evidence which the de might velop, and if which, sustained, entail the would same pun ishment, there clearly no as them.” misjoinder (Ital to Shelton, ics supplied.) the same effect, To State v. 78 see Jarrell, 1 88 pt. syl., S. 454. In State v. E. 76 85 S. E. the Court pt. syl., held that it was proper a to that the un charge single count accused about lawfully revolvers, pis carried his certain tols, weapons dirks other named To statute.
like effect, Merico, see pt. syl., S. E. 370.
None involved than referred to more cases above a single offense; grades degrees none them involved offense; of an than a single pen- and none involved more of- cases, In all alty. only single was clear involved; verdict of general guilty fense was and upon indictment, was called trial.-judge as charged prescribed. upon merely impose single penalty- undertaking express I I sus am believe the view majority For opinion. cited in the tained authorities An Procedure, instance, Criminal Law 5 Wharton’s derson, majority opinion, quoted Section dis- apparently follows: “When offenses commences as or out of the tinct, but under the same statute arising transaction, punishments, the same having same * * Additional from (Italics supplied.) quotations *.” on Indictments Joyce volume and from refer the same different com- creating single having offense statutes ways various parts, specifying ponent be committed. single may Article III of the Constitution of West 14 of *26 crime, that, in all trials for “the ac- provides Virginia informed of the charac- fully plainly shall be cused * * accusation, provision That ter and cause of the Court, heeded the even carefully has been unduly I as technical. regarded have strictness Adams, Warden, 145 rel. Vandal v. W. Va. State ex I at a to background, E. In that am loss 115 S. 2d 489. can hold that the indictment how -the Court understand In- requirement. in meets the constitutional this case the to determine how trial court deed, it is difficult the imposing penalty. the death necessity avoided The did not find that the verdict and general returned jury which, penitentiary,” confined the as in accused “be mandatory. made a life sentence case, have murder would that a verdict results general I the rule is general believe charged. of the offense highest grade the a conviction of an rule that it is sufficient no means inflexible It is of the statute. That language the charge an offense requirement always yield paramount rule must advised fully plainly must be that the accused Ash, 139 accusation. State v. of the character cause Zitzelsberger, 129 339; State v. 374, syl., 80 S. E. 2d W. Va. Garner, 128 835; State v. 1 39 S. E. 2d syl., pt. W. Va. 337; Livesay, v. 127 2d State 1 38 S. E. syl., pt. Va. Lake, v. 112 W. 24; E. State 34 S. 2d 579, pt. syl., Simmons, pt. 99 W. Va. E. State v. 665, 166 S. Va. Mitchell, pt. E. syl., E. 845. syl., 35 S. is defined by the statute offense created
The primary penalty the death for which is felony,” punishment “a or life imprisonment, the discretion of the jury. Two additional offenses are defined in the provisos two statute, one minimum for a providing sentence of twenty years and the other for a minimum years. sentence of ten The accused was entitled to be advised
which of the three he offenses was called to meet. They involve different factual It impossible situations. is to look at jury verdict and determine which of the three offenses defendant was found guilty. Certainly, cavil, all beyond it is at impossible look the sentence imposed and determine that to the responsive ver- dict of the jury. opinion states that majority the prosecution waived death I do penalty. not believe it is so clear that the attorney can
prosecuting deprive the function making that determination. recent case of Smith Winters, Judge, 146 W. 124 E. 240, 244, S. 2d the Court stated: “The mere fact that the prosecuting attorney stated was not to ask going death pen alty did not change the offense. The grand jury indicted capital defendant for a petit offense and the jury has the authority, under the statute and decided cases relat ing thereto, to determine whether case cap from ital the evidence introduced in trial of the case.” *27 The majority opinion if, states that trial, at the the ac- cused “felt that additional information should have been him to him given enable to make proper defense to the of accusation or to inform him the particular act or acts
relied the State upon conviction, for he could have to the moved the court furnish a of require to bill to elect the particulars and act acts specific upon or which I it relied for conviction.” am not of in any aware case which this Court has ever held heretofore that the avail- ability to these the accused of motions relaxes or quali- fies the constitutional rule to of relating the sufficiency the accusation.
Section of 14 of Article III the Constitution of West Virginia guarantees the to a in criminal right jury trial I cases. do not this provision guarantees understand that in a trial of jury
to an accused a criminal case I have this or part any of case. never known only the to construed provision other similar constitutional be so to this time. prior entitled, case was upon proper
The accused this evidence, indictment, determination, the jury to a the should be convicted the question whether whether, event, in that the primary penalty offense and life He was en- imprisonment. be death or also should the factual question to have a determination of jury titled for category his within the whether offense comes or whether twenty-year provided; minimum sentence is factual that he falls in the most the situation is such fav- a minimum sentence guilt, orable category All years supremely of ten such matters are provided. is accused, vital to the therein involved is a matter because the liberty area from minimum sen- of his whole penalty. tence of ten death that area the years to the indictment, are not to judgment verdict and matters treated or casually lightly. day matter of supererogation
It perhaps of the importance nature and emphasize the fundamental cases; point in criminal or out jury of trial by right in such cases jury the function of the carefully how again invasion trial against any zealously guarded cases, jury the sole exclusive “In are judge. jury find, of, province the exclusive they or have judge their exer- cannot interfere with facts, and the trial court proper func- outside improper thereof. It is cise usurp proper or for it to assume tions court fact; it is issues determining jury functions fact, questions on and decide pass not authorized to and decide jury from away take a of fact question facts, material itself, to the that some or indicate controversy, beyond trial, at are established admitted fact bearing on existence of deny or declare Law, C.J.S., Criminal in contest.” 23A which is the issues effect, 31 Am. see To the 270. same page *28 Jur., Jury, 22. In Am. Sec- Jury, page Jur., trial by to right out that tion it is page pointed immemorial; is it that brought from to England this country by the colonists and “it has become a part the birthright of every free man.” The same section “* * * quotes following from language Magna Carta: no freeman hurt, be shall either his or property * * *, unless by lawful judgment his peers equals, * * *." or by the law of the land See also State Stal naker, 1pt. syl., 76 S. 2dE. 906.
I challenge anybody to look at indictment, verdict and sentence in this case and determine whether prisoner is now confined in consequence the provision for a minimum sentence twenty years the provision for a minimum years. sentence ten Whatever may it else, mean to anybody a difference means of ten years to the prisoner. Could it be proper and instructions, the jury by its verdict would pro- have vided for the minimum sentence of ten years, but that the trial judge in this case felt that the minimum sentence should be twenty years?
It important is not only prisoner to know whether his minimum sentence is ten but it is years; also matter of grave importance of the penitentiary warden to the particularly parole authorities of this state.
I the majority believe that opinion this dissent point up nature of the unsatisfactory statute itself and perhaps emphasize the need for its reappraisal legislature. prompted The inducements the inclu- sion of a penalty twenty minimum years, and the still more favorable of a minimum of ten penalty years, are no readily apparent. yet, And since maximum sentences
are provided, these inducements become comparatively meaningless. permit The statute would judge, if willed, were of life impose so sentence imprisonment in any categories one of the three factual defined only legal statute. The em- respect limitation bodied in III, Article Section 5 of the Constitution of which, part, West “Excessive Virginia follows: bail shall not nor excessive fines required, imposed, nor cruel inflicted. and unusual Penalties punishment *29 character and degree
shall be
to the
proportioned
Garrison,
686, 689, offense.” See Ex Parte
36 W. Va.
McKain,
417, 418;
E.
v.
56 W.
49 S. E. 2d
State
Va.
Woodward,
S. E.
20, 21; State v.
Burdette,
Painter,
S. E. 2d
State v.
may
135 W.
For I hold that reasons would void; verdict are and I discharge and sentence would imprisonment without preju- accused from his present proceed against dice to the state have to any rights may him further in the of this case. circumstances
Olga et al. Frye, N. Etc. Norton, Wilbert H. (No. 12251) January April Submitted 1964. Decided 1964.