L. R. Livesay, George Casto, W. T. W. Morgan, Doris Mae Morgan, and Cecil Harrah, commissioners of election and poll clerks at Meadow Bluff District Election and Voting Precinct No. 69 in Greenbrier County, were jointly *Page 581 indicted under Code, 3-7-1 (a) and (h), in an indictment charging that the defendants "did unlawfully, feloniously and knowingly make and cause to be made a false return of the result of the votes cast at said precinct for Vernie Q. O'Dell, who was then and there a qualified candidate in said primary election * * * for the office of Female Member of the County Democratic Executive Committee of Greenbrier County, West Virginia, with unlawful and felonious intent thereby to knowingly deprive the said Vernie Q. O'Dell of the office aforesaid."
The State of West Virginia prosecutes this writ of error to a judgment of the Circuit Court of Greenbrier County, sustaining the separate demurrer of the defendant, Livesay, and discharging said defendant.
All of the defendants were duly arraigned and each entered pleas of not guilty. The indictment was amended by substituting the initial "O" for "Q" in the name of the candidate. Upon motion of the defendants the court granted a severance and separate trials for all of the defendants, and the State elected first to try the defendant Livesay. Thereupon Livesay withdrew his plea of not guilty to the indictment, the State not objecting, and the plea was ordered withdrawn and defendant demurred to the indictment.
Defendant alleges two grounds in support of his demurrer: (1) That the indictment is insufficient for want of particularity in its averments of the offense charged; and (2) that the office of member of a county executive committee is not provided for by the Constitution and statutes of West Virginia and, therefore, a false return by an election official of the result of the votes cast for the candidate for said alleged office is not a violation of Code, 3-7-1.
The pertinent provisions of Code, 3-7-1, are:
*Page 582"False Return of Election; Tampering with Ballots, Certificate or Returns. — When any person named in the following subdivisions shall offend in any of the particulars therein specified he shall be punished as provided in the last subdivision:
"(a) Any commissioner of election or poll clerk who shall knowingly make or cause to be made, or conspire with others to make, a false return of the result of the votes cast for any candidate at any precinct in an election held pursuant to law;
* * * * *
"(h) Every such offender shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one nor more than ten years."
The State urged that the indictment is sufficient in particularity in that it is drawn in the language of the statute. In a case "where a statute creating an offense contains a statement of all the facts necessary to constitute it, an indictment charging such offense in the language of the statute is sufficient." State v. Lantz, 90 W. Va. 738, pt. 1, syl., 111 S.E. 766. But
"If a statute creating an offense does not by its terms define the particular wrongful act, in such manner and to such an extent as to disclose all of its essential elements, an indictment in the language of the statute is not sufficient. It should expand the words of the statute by such specification of the essentials of the offense as will define it with particularity."
State v. Lynch, 84 W. Va. 437, pt. 1, syl., 100 S.E. 284. See also State v. Mitchell, 47 W. Va. 789, 35 S.E. 845. In State v.Simmons, 99 W. Va. 702, pt. 1, syl., 129 S.E. 757, the Court said:
"When the statute employs broad and comprehensive terms descriptive merely of the general nature of the offense denounced, the use of the statutory phrases alone is not sufficient to charge a violation of the statute. The indictment should give a more detailed specification of the accusation which it prefers."
Notwithstanding the instant indictment is drawn in the language of the statute, we think it is insufficient for want of particularity. The term "make a false return of the result of the votes cast", contained in the indictment, is *Page 583 generic, and under the doctrine of State v. Lynch, supra, the indictment should particularize the generic term. We note that the statute inveighs against the making of a "false return of the result of the votes cast." Election officials may make such false return of the results of the votes cast for any candidate in three ways: (1) By adding to the number of votes cast for a candidate; (2) by subtracting votes from the number cast for said candidate; and (3) by adding to the number of votes cast for the candidate's opponent. How then was the return of the result of the votes cast for Vernie O. O'Dell false? The indictment does not inform the accused. Such information would be imparted to him if the indictment contained an allegation stating what would be the true return of the result of the votes cast. In the absence of such allegation the indictment, in our opinion, is bad, and the demurrer thereto was properly sustained.
The three members of the Court composing the majority do not agree upon the second ground of demurrer. We therefore moot because we cannot decide the question arising thereon.
We are of the opinion that the judgment of the Circuit Court of Greenbrier County should be affirmed.
Affirmed.