181 S.E. 820 | W. Va. | 1935
Convicted in Mercer County of issuing and delivering to Mercer Motor Company a worthless check July 18, 1933, for $145.50 and sentenced to two years penitentiary confinement, the defendant prosecutes writ of error. The check purported to be the initial payment on the price of a motor truck purchased on the same date of the motor company by the defendant.
By Code 1931,
By the very language of the statute, intent is of the gravaman of the offense. Where intent is a prescribed element of a statutory offense, it is necessary in a prosecution based on the statute that intent be averred and proved. An indictment for such offense, not averring intent, is fatally defective. 1 Wharton's Crim. Procedure (10th Ed.), sec. 209(3);State v. Sprague,
Though the bad check statute, supra, prescribes "intent to defraud" as an element of the offense, the indictment at bar contains no averment in respect of intent. Such failure renders the indictment incomplete and insufficient. The offense inhibited by the statute is not charged. Precise proof of all the charges contained in the indictment would not convict the accused of the crime defined by the statute. An indictment thus incomplete is void. Scott v. Harshbarger,
Though the sufficiency of this indictment was not challenged in the trial court by motion to quash, demurrer or motion in arrest of judgment, the defect is of such serious nature that it should have been taken into consideration by the court on the motion to set aside the verdict and award a new trial. By failure to demur to or move to quash an indictment, an accused waives any benefit he might have taken of secondary defects therein, but he does not waive primary defects — "does not waive the objection that the facts stated do not constitute an offense." 31 Corpus Juris, page 823; Herron v. State,
We therefore reverse the judgment, set aside the verdict, and remand the case for further proceedings not at variance herewith.
Reversed and remanded. *476