State v. Choat
363 S.E.2d 493
W. Va.
1987
Check Treatment

*1 neighborhood’s original plan of de- velopment.2 reasons, foregoing judgment

For the Morgan County Court of Circuit

affirmed.

Affirmed.

STATE West

Frank CHOAT.

No. 17539. Appeals Court of Virginia.

Nov. See, beverages. e.g., Oliver appellant’s the restrictive of item—alcoholic 2. assertion that Hewitt, (1950) (no Va. 60 S.E.2d 1 an covenant in the case before us constitutes where restrictive covenant restraint of trade of trade is without merit. unlawful restraint groceries drinks on the prohibited or soft Edgell, sale See Robinson v. insufficiently premises). devel- The record is The covenant in the S.E. regard only type oped to this contention. us restricts the sale of one case before *2 Chiplinski Zee’s.1 Officer testified that he observed at one of the least individuals holding a can of in his beer hand. He *3 appeared testified the individual to be drinking beer held because had the can lips. to his Officer Brown noticed that one carrying of the individuals was a brown paper bag. Upon seeing approaching the cruiser, police Brown the observed individu- al move toward the van. drinking public

Because beer in is in vio- Wheeling ordinance, lation of a city the stop officers decided to investigate. and cruiser, As the officers exited their all three of the individuals moved toward the van. officers then instructed the men away to move from Initially, the vehicle. appellant cooperated away the and moved thereafter, Shortly from van. Officer appellant Brown stated that the leaned into van, sight at that time he had lost appellant’s hands. grabbed appel- Officer Brown then Miles, Gen., Atty. Jill Asst. for State. lant, placed him patted the van and pocket pants. down the outside of his In- Robyn Ruttenberg, Wheeling, for Choat. appellant’s right pants’ pocket side the a lock-blade knife with a five-and-one-half McHUGH, Justice: inch appellant blade. The was arrested for This case is upon before this Court deadly weapon appeal of Frank Choat. It arises from an without a license in violation W.Va. order of the County Circuit Court Ohio Code, 61-7-1 [1975]. placed years the defendant on two probation guilty by after he was found trial, appellant sought Prior to suppress evidence of the knife as the fruit weapon without a state license in violation illegal evidentiary of an search. After an This Court [1975]. hearing regarding appellant’s was held petition appeal, has before it the all motion, suppression the trial court conclud- argu- matters of record and the briefs and appellant ed that the search of the ment counsel. totality under the reasonable of the circum- appellant’s

stances and denied motion. I September Wheeling po- On two II officers, Chiplinski Keith

lice Cecil appeal The first issue before us in this Brown,- patrolling Wheeling were Is- stop whether the and frisk of the County. ap- land area located Ohio At police constituted a reason- officers a.m., proximately 3:00 the officers observed the fourth able search and seizure under standing three individuals outside a van amendment to the Constitu- parked approximately thirty which was United States III, 6 of the yards from an area bar known as Mr. tion and article section surrounding high-crime suppression hearing vicinity Mr. Zee’s was a 1. Evidence adduced at a appellant’s prior area. trial established that the must, practica- whenever For reasons while the Virginia Constitution.2 ble, approval judicial advance stated, hold under the obtain we hereinafter through case, the warrant stop and searches and seizures of this circumstances failure to in most instances procedure, appellant was reasonable frisk of the requirement can comply the warrant permissible. constitutionally thus circumstances, by exigent only be excused It fundamental warrantless procedure can- police “stop and frisk” under the per unreasonable searches are se procedure. subjected not be the warrant States fourth amendment to United “stop the police The court reasoned that a lim they fall within unless Constitution “necessarily action is a swift and frisk” *4 carefully excep defined ited number on-the-spot predicated upon the observa- Arizona, 385, Mincey v. 437 U.S. tions. it and that tions of the officer on the beat” 290, 390, 2408, 2412, 57 L.Ed.2d 98 S.Ct. subject con- impractical to such would be v. Busta 298-99 Schneckcloth requirement. 392 U.S. duct to the warrant 219, 2041, 218, monte, 93 412 U.S. S.Ct. 1879, 20, at 905. at 20 L.Ed.2d at 88 S.Ct. 2043, 854, (1973); Katz L.Ed.2d 858 v. 36 po- Instead, that the the court determined 347, 357, States, 88 S.Ct. 389 U.S. United frisk” “stop in a and lice conduct involved 507, 576, (1967). 514, 19 L.Ed.2d 585 by must tested the fourth amendment’s be principle adopted also this under We against unreasonable general proscription III, Virginia article section 6 of West and seizures. Id. searches point syllabus 1 of State v. Constitution ruling in the court’s Pursuant to 837, Moore, 272 804 165 W.Va. Ohio, po determining Terry whether v. (1980): “[sjearches conducted outside the stop with a lice conduct associated prior approval by judicial process, without reasonable, fourth frisk under magistrate, per are unreason judge or se amendment to States Constitu United and Ar the Fourth Amendment able under (1) inquiry is two-fold: tion the III, Virginia of the West ticle Section 6 incep police justified conduct its at only specifi to few subject Constitution — tion, 27-28, 1883, 20 392 U.S. at 88 S.Ct. at cally excep well-delineated established and 909, (2) the search L.Ed.2d at and whether Peacher, v. tions. 167 ...” See also State scope cir reasonably related 559, 540, 562, 574-75 280 S.E.2d justified the initial inter cumstances which 578, Duvernoy, v. 156 W.Va. State 29, 1884, 392 U.S. at 88 S.Ct. at ference. (1973), 583, 631, quoting 634-35 195 S.E.2d Joseph 910. v. 20 L.Ed.2d at also State 443, Hampshire, New 403 U.S. Coolidge v. , 336 S.E.2d 175 W.Va. 2032, 564, 454-55, 2022, L.Ed.2d 29 91 S.Ct. T. 728, specifically Terry, ruled Court 1, Ohio, 88 S.Ct. Terry v. 392 U.S. that: L.Ed.2d 889 the United [Wjhere police unusual excep- officer observes Supreme carved out an States Court reasonably to him general requirement set conduct which leads tion warrant to experience his There, that the court noted that conclude forth above.3 catego- exceptions recognized and have been amendment to the United States 2. The fourth See, right people Supreme by reads: "The to Court. Constitution rized the United States houses, papers, persons, California, be in their e.g., secure 89 S.Ct. Chimel v. 395 U.S. effects, against unreasonable searches sei- (search (1969) incident to L.Ed.2d 685 violated, zures, not be and no Warrants shall arrest); Warden, Penitentiary Maryland lawful cause, issue, upon supported probable but shall Hayden, 87 S.Ct. affirmation, particularly describ- Oath (1967) (hot pursuit); Ker L.Ed.2d Califor- searched, ing place person to be and the nia, U.S. 83 S.Ct. 10 L.Ed.2d 726 III, things 6 of the to be seized." Article section States, view); (1963) (plain Carroll United parallel contains lan- Constitution (auto- (1925) S.Ct. 69 L.Ed. 543 U.S. guage. Peacher, mobiles). See also State v. (1981), collecting 280 S.E.2d exception the warrant In addition requirement cases note 10. recognized States the United Ohio, supra, Terry v. other Court in 61X activity may criminal police be afoot and dispatcher burglar a “silent” persons dealing with whom is alarm at a local education center had (cid:127) armed and presently dangerous, sounded at the station. The officer where in the course of investigating responded this then to the call. ap- As he behavior he identifies police- proached center, himself as a he observed the defen- man and inquiries, makes reasonable and dant approximately yards from the nothing where stages the initial building, which but for the defendant’s dispel encounter serves to presence, reasonable was otherwise deserted. The of- fear his own or safety, others’ he is ficer then stepped out of his car and told protection entitled for the of himself and the stop defendant and turn around. others in the area to conduct a carefully The officer informed the defendant that he limited search of clothing the outer of was responding to the center’s alarm and persons such in an attempt to discover pat he intended to him down “for his weapons might be used safety to assault as well as patting mine.” After him. Such a search is a reasonable defendant around pants pock- his waist and search Amendment, ets, under the Fourth object officer felt a hard that he *5 any weapons may seized properly handgun. be believed was a He retrieved the introduced in evidence person gun the from the pocket defendant’s and ar- from they whom were taken. rested the defendant. At his trial il- legal possession handgun, the defen- 30-31, 392 1884, U.S. at 88 S.Ct. at 20 dant suppress gun, moved to arguing L.Ed.2d at 911. police that the officer’s conduct violated his A investigative brief stop is there fourth rights. amendment The motion was permissible fore police whenever the offi denied the district court. cer has a suspicion grounded reasonable in The court ultimately determined that a specific and per articulable facts that the justified combination of factors stop in stopped son he has been or is about to be Moore. The court noted that when the involved in a crime. United States v. approached officer alarm, the site of the he Moore, 1105, (4th Cir.1987); 817 F.2d 1107 appellant saw the close to one of the en- United Hensley, 221, States v. 469 U.S. building. addition, trances of the In 227, 675, 680, 604, 105 S.Ct. 83 L.Ed.2d 611 court focused on the fact that the call came Ohio, Terry v. supra. See also night late at and that the defendant was 294, 1, State v. Stanley, 168 W.Va. 297 n. only person in vicinity. 367, (1981). Indeed, 284 S.E.2d 369 n. 1 “ may ‘it good police be essence of concluding In the Terry-type work’ to maintain quo the status a reasonable, stop in Moore was the Court stop police brief that allows the officer to determined that the circumstances dis investigate further the possibility of crimi supported cussed above a well-founded sus nal Moore, involvement.” United States v. picion that the in was involved 1105, (4th Cir.1987), 817 F.2d quot 1106-07 Although the break-in. recog the court Williams, ing 143, 145, Adams presence nized that an individual’s in a 1921, 1923, 612, 92 S.Ct. 32 L.Ed.2d 616-17 high-crime vicinity is not alone sufficient to suspicion, raise a reasonable it noted that “ Appeals The federal disposition Court of for the area’s toward criminal ‘[a]n ” recently Fourth prin- activity Circuit discussed the is an articulable fact’ con be ciples Terry determining established in in determined sidered the reasonableness stop Moore, that the and frisk stop. supra of an individual was quot permissible Constantine, reasonable and thus under the ing United States v. 567 (4th Cir.1977). Thus, fourth amendment. v. F.2d 267 See United States Moore, logic propensity police F.2d 1105 criminal of a officer’s applied the court in in may properly that case be beat is a factor that a court Moore, assessing case now before this Court. In in consider the reasonableness of police stop. officer investigatory had received a call from the an us, although police probable has cause to the individu-

In case before arrest responding not to a al for a crime. The officer need not be officers were call, activity they absolutely criminal afoot certain that the individual observed area, armed; Wheeling reasonably patrolling the Island the issue whether a while acknowledged high-crime prudent area. man in the circumstances would an Furthermore, supra. Chip- safety warranted in the that his note Officer belief danger. one the individuals linski observed that or that of others was drinking public appeared to be a beer U.S. at 88 S.Ct. at L.Ed.2d In Wheeling city violation of a ordinance. Williams, at 909. See also Adams v. Drake, 169, 171, 291 State v. U.S. S.Ct. we determined that L.Ed.2d United States automobile, open an bottle in an beer Moore, (4th Cir.1987); 817 F.2d municipality’s open of a alcoholic violation 761 F.2d Longmire, United States v. ordinance, was sufficient cause for bottle (7th Cir.1985). determining investigating require officer to the de- reasonably the officer acted under the cir- vehicle, although step fendant to out of his cumstances, the court that “due noted ultimately the defendant was not arrested weight given, must be not to [the officer’s] Similarly, for violation of this ordinance. suspicion unparticularized inchoate and us, in the case now before officer’s ‘hunch,’ specific but to the reasonable in- that one of the individuals was observation ferences is entitled to [or she] drinking a was sufficient cause for the beer draw from the facts of his [or her] stop investigate officers to the scene. experience.” 392 U.S. at 88 S.Ct. at addition, transpired these events at an 1883, 20 L.Ed.2d at 909. *6 hour, extremely early approximately 3:00 in We adhere to the standard set forth morning. the by Terry proge the court in and its federal the circumstances of this Under ny accordingly police hold that where a case, opinion we are of the that the officers making investigatory stop officer a lawful justified conducting investiga in the were has reason to believe that an individual is stop appellant compan tory of the and his officer, dangerous, armed and in order that police ions. conclude that a We where others, protect himself and conduct high-crime in officer observes individuals a weapons, regardless a search for concealed vicinity during early morning the hours and probable he has cause to whether arrest has reason to at least one of those believe a The the individual for crime. officer ordinance, violating city a an individuals is need not be certain that the individual is investigatory stop by police conducted the armed; inquiry reasonably the is whether a constitutionally permissible. officers is prudent man under the circumstances amend. IV. Const. art. U.S. Const. would be warranted in the belief that his III, 6.§ safety endangered. of others that was Having the concluded that initial investi- U.S. Const. amend. IV. W.Va. Const. art. reasonable, gatory stop was we must now III, 6.§ subsequent determine whether the frisk of above, As discussed in the case we appellant weapons for

the was warranted setting early in before us the was the in the case before us. vicinity high morning in a known for its regard, the this Court of addition, propensity. criminal the offi Ohio, Terry supra, United States cers were outnumbered the individuals instructs us that under the fourth amend- Moore, three to two. See United States v. narrowly authority ment there is drawn 1105, 1108(1987). Importantly, 817 F.2d us, appellant, although permit weap- search for the case before reasonable police cooperative initially, offi- the officers dis protection ons for the cer, stay away from obeyed he reason to believe that their directive to where has leaning dealing danger- companions’ his van into a com he is with an armed and individual, regardless partment passenger on the side of the van. ous of whether he s intru- Officer Brown sight of the above standard. Brown lost point, Officer At that Fearing for his hands.4 limited that appellant’s appellant sion of the was partner, Officer of his safety and that own appellant’s outer merely patted down the him appellant, placed grabbed Brown Moore, United States clothing. See pat proceeded to down the van ánd The officer con- F.2d totality of circum Under the pockets. his necessary to was fined his search to what case, war the officer was in this stances appellant possessed a whether discover safety and that in his that his ranted belief it him once was weapon and to disarm endangered and was partner discovered. conducting subsequent frisk justified foregoing, conclude Terry upon the we weapons. for Based Ohio, appel- 88 S.Ct. denial of the the trial court’s L.Ed.2d knife as the suppress lant’s motion illegal proper. search was fruit of an Moreover, scope of the search in this case was weapons conducted for designed to discover reasonably

limited and Ill weapons or instruments possible hidden our consid- presented had in his issue appellant may have The next Terry noted in The Court possession. appeal the trial eration in this of the search ... justification sole holding “[t]he erred in that the five-and-one- court and oth police officer protection knife seized from the half inch lock-blade therefore be con nearby, and it must ers weap- appellant was reasonably scope to an intrusion fined in it of law and whether on as a matter knives, clubs, or guns, designed to discover to instruct error for the trial court for the assault of hidden instruments other accordingly.5 392 U.S. at 88 S.Ct. officer.” [1975], provides scope 20 L.Ed.2d at 911. pertinent part: problems in presents no the search 5. the appellant’s had observed he had The amendment person has the hand into his constitutionality the defense amendment The this State on November effect at the statute adopted similar P.2d 296 art. contains "The individual W.Va. During suppression In the case The amendment The pocket.” appellant’s right parties Ill, lawful Const, seen the dilemma § the time the language constitutional to bear (Utah 22 of the West trial, before the did not of before hunting "Right art. self, family, the pants pocket. trial, right . Court right appellant’s “hands Officer of W.Va. 1985). relating succinctly provides that "[a] Ill, arms in State was ratified argue similar to that us, to this witness indicated to trial court nor of Utah was case before us was § and recreational hearing we need keep Keep Brown testified that 22. amendment The Utah amendment Code, to that state’s Virginia home people constitutionality and bear placing Subsequently, held 61-7-1 by the voters of not address the and was not embodied faced with a Constitution. going Constitution: Bear Arms” prior Wacek, before us. state, regarding his keep [1975] arms for recently inside tried. right use.” he in in of bear arms for from other ly, but under light because Even of art. the statute changed the intent to make Const, Constitution, tive dant was not to he Firearms Amendment, from its terms. possible to The case Furthermore, dangerous For a Bear others, nothing Colo. charged history assuming given defining lawful of the art. I, comprehensive discussion of the What, When, P.2d impact, the statute the substantive § language property, governing Law v. I, only prospective challenged herein of purposes[,] shall not be weapon by the with the crime. in a 89 W.Va.L.Rev. relating 6.§ security new constitutional the lawful use of arms.” this amendment a constitutional see Torvinen v. court reasoned that position to advance the claim it retroactive in shall McNeely, the or the the crime and Where—West The effect when the defendant to the and defense P.2d the change prevent rights a restricted clearly *7 state, Right-to-Bear-Arms constitutionality Rollins, right to hear arms application, The 703 P.2d at 297- People of under in the clearly appears amendment the as well as for as well constitutional possession Right amendment. 93 Nev. legislature (1974). the defen- self, infringed; person language the Utah Virginia of legisla- Elliott, unless as its fami- Utah Who of of in weapons,” although specified license any person,

If without a state not in the except provided statute, “dangerous or as elsewhere deadly therefor would be or provisions and other of this in this article meaning statutory within the if in its in- Code, carry person any about his revolv- readily adaptable likely or tended use it is dirk, knife, shot, pistol, slung er or bowie produce bodily injury.” death or serious razor, billy, metallic or other false knuck- 7-8, W.Va. at S.E. at 487. les, dangerous deadly weapon or or other implement question in Because the character, kind or of like shall be specifically case before us is not enumerat- misdemeanor, guilty of a .. .6 statute, dangerous ed in it is not a or us, obviously In the case before knife deadly weapon per se and falls into the among weapons does not fall those enu- category second classified Court appel- merated in the statute above. Barboursville. lant therefore contends that the determina- syllabus point 1 Village Barb dangerous tion of whether the knife is a or Taylor, 115 oursville ex rel. Bates v. deadly weapon must then be a factual W.Va. 174 S.E. 485 this Court question jury. Conversely, for the specifically held: argues question State that the of whether classified intrinsically, (1) to ments as are weapons, iting statute, W.Va.Code, Bates v. deadly.” The Court determined that the criteria for the inclusion of a specified the trial holding in Village Barboursville ex rel. accordingly. court adhered to that is a proscribed under In Village Barboursville ex rel. Bates statutory regulation Taylor, supra, Barboursville articles intended as knife is question In the case before Taylor, about in the statute as objects judge pursuant was “intended to characteristically.” dangerous per dangerous of law to be determined which and instructed the this Court person principle into Code, might weapons, or to this Court’s two of such instru- se— deadly weapon “dangerous [1931], prohib- proscribe 61-7-1 us, be 174 S.E. 485 developed weapon established inherently, categories:. The Court subjected the trial such as not or ble effects charges. as well as its question bition of tain deadly weapon” (emphasis in weapon ly injury. If it be of that ated in the statute. like kind and character to those enumer- planned named in the pistol, les, on about the zor, billy, metallic or other Where likely pen its intended or or other like kind or determination of of law and tear dirk, *8 W.Va.Code, within the of and made for a a statute person ‘any produce gas gun” firing original) adaptability bowie dangerous within the statute, readily depended tear knife, death character,’ statutory meaning 61-7-1 is a prohibits carrying gas The Court noted revolver or other whether a “foun- or is a for adaptable statutory or serious bodi- slung nature, “dangerous from the deadly weap- on the [1931] weapon, false firing an article shot, it is of knuck- proba- was a prohi- use it other gun, not ra- if revolvers, billies, many practical There are useful and in- dirks and metallic knuck- les; (2) by persons struments are carried primary which for articles the use of peaceful purposes, may adaptable which be weapons is not as but which are i.e., produce bodily injury, pock- death or readily adaptable to that use. The Court knives, knives, ultimately cutting held that “articles intended as et butcher tools. Syl. pt. of templated ness out with In order to withstand provide adequate ordinary intelligence challenge, sufficient conduct is State v. “[a] definiteness to criminal statute must standards for Flinn, accord prohibited fair notice that his con a constitutional syl. pt. by adjudication.” give person statute and a State v. vague be set Reed, pt. vagueness was not raised below and is not be- fore The us in this case. State v. 166 W.Va. constitutionality of respect Less, 170 W.Va. 276 S.E.2d 313 principles of (1981); S.E.2d 62 statutory syl. dangerous had straight become or razor which he concealed. instruments Such eventually apprehended only they are used or carried The defendant when weapon. by report after a from a use as a a officer may man that the defendant have robbed jurisdictions Various have considered The ran as the officer someone. defendant danger- particular instruments are upholding him. In walked toward de- deadly weapons pursuant to their ous or possession fendant’s for the of a conviction respective weapons statutes and a discus- deadly weapon, the court those cases is here. sion of warranted said: Green, 62 N.J. 303 A.2d State purpose The test is ‘[whether] companion a the defendant and carrying object, under the circum- shoplifting in the act of were observed stances, weapon.’ is its use as a This leaving then a store. The defendant and may be shown an examination of the companion apprehended were and a place time and the defendant was found pocket- search revealed that each had a it, among carrying other circumstances. possession. knife in his The defendant’s Moreover, any explana- in the absence of single folding approxi- knife had a blade defendant, tion from the conceivable le- long and one-half inches mately three gitimate reasons for such an open. not lock when The defen- would setting proper are a instrument ultimately reversed dant’s conviction subject inquiry. could well error, the court held for instructional but have concluded that was not that the evidence would have sustained carrying the razor on the street for use possession of defendant’s conviction for a [hobby] ‘as a tool certain [a] [trade] though “dangerous knife” even the knife for utilitarian reasons.’ or ... included in the enumeration of was not (citations omitted); 256 A.2d see also proscribed instruments statute to be Baldwin, (Mo. State v. S.W.2d deadly weapon per se. 1978). recognized holding, the court that: so weap- jurisdictions Other have construed [pjlainly possession any knife knife, similarly ons statutes worded to the West incriminatory offense and a not an test of penk- statute to include factual popularly pocketknife, known as a whether, surrounding commonly under the circum- jackknife, nife or carried for stances, purpose object utility, or other personal convenience weapon. ‘dangerous knife’ or instrument was for use as a purpose is not a lawful 237, 238-39, however, Blea, say, 100 N.M. That is not to State per se. Rackle, knife, length P.2d 1115-16 irrespective State

such a 523 P.2d circumstances under 55 Haw. its blade or the However, carried, proof actually of intent to use an may not a lethal which it is bodily inflict not be from article to harm weapon and should be excluded ... Rather, posses- necessary. the test whether ‘dangerous term knife’ the purpose carrying the item was its use as by statute. sion of which is interdicted States, weapon. rele- v. United the rationale of our Distilled from Leftwich *9 646, (D.C.1969); 251 A.2d 649 see also prevailing decision- vant statutes and 560, Green, 547, 303 A.2d that a v. 62 N.J. a reasonable conclusion State al law is Blea, 312, (1973); N.M. v. 100 dangerous per se will 319 State knife is not (1983). 237, 239, 1114, 668 P.2d 1116 purpose ‘dangerous a knife’ if weapon. possession is its use as a its par of whether a The determination 560, in (emphasis A.2d at 319 at 303 62 N.J. “dangerous or dead instrument is a ticular added). lines the last two W.Va.Code, 61-7-1 ly” weapon under (D.C.1969), Clarke v. United the defendant was States, 256 convicted of A.2d 782 [1975] including: depends upon a (1) the nature of variety of factors instrument, size, i.e., shape, possible weapon its condition deadly carrying dangerous a or (2) alteration; under the circumstances carrying a found to have been after he was 616 i.e., time, carried, place weapon depending upon is and be a its

which it 7, the defendant is found use. 115 W.Va. at 174 S.E. at 486. In situation which it; (3) recognition prin- of the Court’s of that the defendant’s actions vis-a-vis with Barboursville, item; (4) ciple in as well as the sub- place of concealment. rule, precedent favoring Blea, stantial such a we 100 N.M. 668 P.2d v. State jurisdictions, like other construe 1114, (1983); W.Va. 1116 see v. also Scott United Syl. pt. the State statutes must be 305 S.E.2d States, 243 A.2d Baldwin, ute, State v. 312, State 319 This Court has 3, Green, (1973). and in 571 S.W.2d v. State ex rel. Carson v. 278, 61-7-1 Hodges, 62 N.J. 54, strictly 284 favor 56 [1975] (1983), 172 236, (D.C.1968); 547, construed recognized W.Va. is a 242 560, defendant.” penal (Mo.1978); 303 A.2d State “[p]enal against Wood, stat v. purpose instrument not deadly essary of an accused sion ment was for use as a test stances, Code, 61-7-1 Hence, supra. as to determine the weapon purpose finding as whether, [1975] specifically by the statute. charged the instrument to include weapon. under carrying to the defendant’s guilt enumerated as or innocence the circum- the factual the instru- discus- nec- an 397, (1970); 154 175 S.E.2d 482 W.Va. see foregoing, Based on the when the Cain, 357, 353, also v. 178 W.Va. 359 State prosecution instrument involved in a under Nichols, 581, 177 W.Va. (1987); 483, syl. pt. 354 S.E.2d 415 3, State v. W.Va.Code, ically enumerated in the 61-7-1 statute, is not one the issue specif 1, syl. pt. Turley, 177 State v. “dangerous as to whether it is a or 69, W.Va. 350 S.E.2d 696 This weapon” essentially a factual determina point Myers elaborated on this v. jury, Court tion and must be submitted to the 5, Murensky, 162 W.Va. S.E.2d 920 unless the trial court can determine as a (1978), syl. pt. point, overruled on another matter of law that under the evidence 2, 277, Myers, v. 171 W.Va. 298 the case the could not have concluded State (1982): weapon deadly. that the S.E.2d 813 Baldwin, See State S.W.2d liberty The is not at to consider the Court (Mo.1978); Vaines, People Mich. purpose intent or of a criminal statute to 500, 505-06, 17 N.W.2d possible in the extent other areas of the Totten, See also State v. 169 W.Va. Legislature’s intent is not law where (1982) (whether 289 S.E.2d [A]mbiguous precisely expressed.... weapon immediately available and ac penal strictly statutes are construed ordinarily question cessible to use is favorably State jury). To fact the extent that this liberty of the citizen. holding Village Court’s Barboursville 8-9, at 245 S.E.2d 922. Ac- Taylor, ex rel. Bates v. cord, Brumfield, 178 W.Va. State v. is inconsistent S.E. with this 358 S.E.2d State v. opinion, hereby it is overruled.7 Turley, supra, 177 W.Va. at 350 S.E.2d principle at 700. “This rests on the fear Because the knife confiscated from judicial interpretations may “dangerous expansive was not a penalties deadly weapon” per pursuant not create for offenses were se W Va. Code, [1975], legislature.” intended it was reversible error State jury. court to so Brumfield, supra. for the trial instruct the in the case us Village Barboursville ex rel. instrument before was Taylor, supra, recog approximately the Court a lock-blade knife with an Bates v. *10 may may or not inch blade. In of the nized that an instrument five-and-one-half Village Tay- deadly weapon, question par- a In Barboursville ex rel. Bates v. whether lor, supra, specifically comes within the inhibited this Court ruled that ticular instrument category legal problem by charged a to be decided "where the offense is the unlawful 7, person about the of a or court.” 115 W.Va. at 174 S.E. at 486.

617 above, 736, (1940); and, we remand this S.Ct. 84 L.Ed. 1093 standard articulated Hern for a to determine whether the Lowry, case don v. 301 U.S. 57 S.Ct. 81 fact, was, by appellant (1937). Therefore, knife carried pass L.Ed. 1066 to con pursuant “dangerous deadly weapon” muster, (1) or stitutional pro a statute must: W.Va.Code, 61-7-1 offending vide definite notice of the con [1975]. this manded. Court of Ohio For the reasons set forth in section III of opinion, County judgment is reversed and re- Circuit The statute under tive duct; and, (2) Code, 61-7-1 application by prosecutors not invite [1975] flunks both tests. consideration, arbitrary and selec police. case, present In the Reversed and remanded. dangerous weapon, convicted of blade, described as a lock buck knife with a NEELY, Justice, dissenting: to Mr. Choat due to its indefinite nent Jacksonville, 405 U.S. that his ness, describing victions.” 405 U.S. at vagrancy ordinance was void for offending criminal statues L.Ed.2d 110 ing law, [1975] because I find that was laid out ages arbitrary and erratic arrests W. person in this article and other les, razor, billy, metallic or other false knuck- Added]. therefor or on If guilty of a er or Code, carry I Va.Code, dissent for the any person, part: both or other pistol, two statute,” like kind contemplated facially a statute is “void for cynosure in the sense that it “fails to majority, ordinary (1972).1 conduct prong except misdemeanor, dirk, about unconstitutional provide Papachristou majority’s holding without a state license bowie weapons. of due test intelligence fair as character, Justice held that a conduct is forbidden “because 162, 92 W.Va.Code, being provided person any fair notice of the knife, provisions for provides process 92 S.Ct. ... Douglas, deadly weap- S.Ct. vagueness,” determining slung proscribed. he shall [Emphasis it encour- elsewhere as municipal language and con- criminal City applied is that at 843. revolv- vague- 61-7-1 of this notice today perti- shot, writ- give be of 681, 687, sey, 306 U.S. struction this statute to be now Ref. liberty to be informed as to what the State com- nal statute enacted meaning Frink mands or forbids.” Lanzetta v. New Jer- the authorities. enforced L.Ed. 516 of-fact: character.” This indefinite U.S. poor, phrase statute invites discrimination cifically enumerated in Supreme Court five inch blade. The [1975], Otto) 214, 126, 127, Grocery “No one appellant’s weapon, although Co. v. interpreted by United States minorities, Dairy, or “or as Co., by police, prosecutors 71 L.Ed. 1146 property Co., 70 L.Ed. 322 (1921); 14 A.L.R. 1045. interpreted by Corporation penal deadly weapon 255 U.S. Connally deadly United 274 U.S. L.Ed. 52 S.Ct. 269 U.S. struck be and those disfavored statutes. 59 S.Ct. selectively required by Congress, States v. L. Cohen within the catchall majority down speculate 559, 568, Reese, 445, 465, (1927); Champlin 385, 391, v. General Con- Court, Commission, (1926); of like kind or All are entitled construed and a broad crimi- language, majority, S.Ct. 83 L.Ed. 888 peril found that and triers- will allow as to the 76 L.Ed. the U.S. Cline not 47 S.Ct. 46 S.Ct. holding: U.S. 61-7-1 spe- life, as (2 v. certainly dangerous if the “It would synthesis taken from a These two tests are large enough Legislature set a net could Harriss, 347 U.S. of U.S. offenders, leave possible all 808, 811-12, to catch 98 L.Ed. 989 S.Ct. say step inside and Alabama, it to the courts Thornhill v. Court,” seq. void-for-vagueness preme U.Pa.L.Rev. 104 et doc- 1. For a discussion note, rights see trine in area of fundamental Vagueness Doctrine in the Su- "The Void *11 detained, rightfully could be who large.” should be set at

who majority’s interpreta- at 221. The

tion of Code, creates Supreme

the exact scenario that the Court Furthermore, be-

warned about Reese. today

cause this Court has erred a mat- significant

ter of constitutional di- federal

mensions, this case should be reviewed Supreme Court of the United States.

363 S.E.2d 504

STATE of West

Michael Dean MILLER.

No. 17490. Appeals Court of Virginia.

Nov.