This is an original proceeding in prohibition instituted by the State of West Virginia at the relation of Ed Gillespie, hereinafter referred to as petitioner, against the Honorable George W. Wood, Judge of the Intermediate Court of Ka-nawha County, and Patrick Casey, Prosecuting Attorney of Kanawha County, hereinafter referred to as respondents. The purpose of this proceeding is to prohibit the respondents from prosecuting petitioner under felony indictment No. 3028 returned by a grand jury of the Intermediate Court of Kanawha County during the September, 1969, term.
Under the first count of the indictment petitioner is charged with attempting to bribe one Dale Curry, described as “an executive and ministerial officer of the State of West Virginia, being duly qualified and appointed.” The indictment further describes Curry as “a Buyer in the Purchasing Division of the Department of Finance and Administration of the *424State of West Virginia.” The attempted bribe was “to influence the said Dale Curry, in the performance of any of his official and public duties,” and, more particularly, “to grant favor and award business to the Debs Hospital Supplies, Inc.,” in which corporation petitioner was interested. The second count of the indictment is identical to the first count except that, instead of charging attempted bribery, it charges that petitioner actually committed bribery.
Petitioner alleges that the so-called “Buyer” was not an executive or ministerial officer of the State, that the Buyer had never been duly qualified and appointed as such an officer, and that the Buyer was not known by petitioner to be such an officer. Petitioner says that the Buyer was merely an employee of the State instead of an executive and ministerial officer, and, thus, is not a person who can be bribed under Code, 61-5-4, as amended, which reads as follows:
If any person shall bribe, by directly or indirectly giving to or bestowing upon, or shall attempt to bribe by directly or indirectly giving to or bestowing upon, any executive, legislative, judicial, or ministerial officer of this State, or any member of the legislature, after his election or appointment and either before or after he shall have been qualified or shall have taken his seat, any gift, gratuity, money, testimonial or other valuable thing, or shall make promise thereof, in order to influence him in the performance of any of his official, public duties, or with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding, or to induce or procure him to vote or withhold his vote on any question or proceeding which is then or may thereafter be pending, or may by law come or be brought before him in his official capacity, he shall be guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary not less than one nor more than ten years, and shall, moreover, be forever disqualified from holding any office or position of honor, trust or profit in this State. (Emphasis added.)
In support of his argument, petitioner asserts that the Buyer was not elected, not required to take an oath of office, and not required to execute a fidelity bond; that the position of “Buyer” is not mentioned in our State Constitution, Code, *425or in the Rules and Regulations promulgated by the Commissioner of Finance and Administration or by the Director of the Purchasing Division; that the term “Buyer” apparently arose as a matter of job description; that the Buyer had no tenure of office but was merely employed on a month-to-month basis; that the Buyer in no way exercised discretion or prerogative in the performance of his job; that there was no official certificate of election, appointment, etc., relating to the Buyer; and that the Code specifically provides that the director shall be “the executive officer of the purchasing division.” (Emphasis added.)
Petitioner concludes by asserting that since the Buyer is a mere employee, he could not be the object of a bribe or an attempted bribe, and, this being so, the indictment is void. It is further asserted that the indictment is void because Code, 61-5-4, as amended, “is vague and unconstitutional and void and that it is inconsistent with other statutes promulgated by the Legislature and the Constitution of West Virginia.”
In answer to the above, respondents deny that the Buyer was not an executive and ministerial officer; aver that he was appointed by the Commissioner of Finance and Administration as attested to by a certificate of appointment given to the Buyer; and deny that he was a mere employee. Respondents admit that while the Buyer did not have to execute an “independent” fidelity bond, he was covered by a “blanket” bond. In respondents’ Exhibit No. 1, an affidavit of Dale Curry, Curry says that he was appointed in June, 1961, as a Buyer, “with the primary responsibility of establishing a drug purchasing program,” since he is a registered pharmacist. At some time after his appointment, “he contacted several drug manufacturers in order to negotiate contracts directly with them where possible instead of with retailers as was the existing policy; that thereafter he began negotiating price agreements with the manufacturers.” The affidavit goes on to say that once contracts were negotiated, “he could and did sign purchase orders in any amount on behalf of the State.” Respondents allege that the purchasing director délegated the responsibility with respect to purchasing drugs to the *426Buyer, and that the Buyer “did, in fact, exercise such power and authority.”
Respondents further admit, as petitioner alleges, that the position of “Buyer” is not mentioned in the Code, Constitution, or Rules and Regulations of the department, but aver that such position has existed for numerous years and that the Buyers for the purchasing division were and are responsible for a large number of purchases and transactions for and on behalf of the State.
Along with numerous other denials on behalf of respondents, the answer also contains a demurrer to the petition based on four grounds. In a replication to the demurrer, petitioner moves this Court “that such demurrer be stricken and/ or quashed,” on the ground that the matters in the demurrer “are not matters properly contained in a demurrer.”
On March 23, 1970, the rule was granted returnable on May 5, 1970. The case was continued to May 26, 1970, and on May 27, 1970, was submitted for decision upon oral argument and briefs.
This case differs from the companion cases No. 12935 and No. 12936, styled State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482, decided this day, only in this regard: the petitioner in Carson was an alleged “executive and ministerial officer of the State of West Virginia” accused of accepting bribes, while the petitioner in the instant case is accused of bribing and attempting to bribe an alleged “executive and ministerial officer of the State of West Virginia.” Also, the petitioner in Carson was indicted under Code, 61-5-5, as amended, while this petitioner was indicted under Code, 61-5-4, as amended. These two statutes are, of course, those applicable in the respective cases.
While these factual differences do exist, we find the cases indistinguishable. The same principles apply in each, and reference is hereby made to the Carson case for the applicable law. We hold in this case that prohibition is the proper remedy; that sufficient facts are set forth in the verified pleadings in the case to determine that Curry was a mere *427employee and not an executive and ministerial officer of the State as alleged in the indictment; that because of this no crime is charged in the indictment, and, therefore, the indictment is void; and that since the indictment is void, the respondent judge of the Intermediate Court of Kanawha County is without jurisdiction to proceed further in the case. Therefore, the writ of prohibition is awarded as prayed for.
Writ awarded.