dissenting:
Very respectfully I dissent. With deference to my associates, I state that I believe the majority opinion glaringly violates various fundamental legal principles, constitutional and otherwise; and that no pertinent authority for its justification can be found in this or any other state.
I agree with the holding of the Court in reference to questions concerning venue and jurisdiction. My dissent relates to matters affecting the validity of the indictment, verdict and sentence, when such parts of the record are considered both separately and as a whole.
Perhaps our initial disagreement stems from the holding, summarized in the first point of the syllabus, that the statute creates but one offense. I am unable to comprehend how a single offense, without any 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 the other hand, it creates a single offense having different degrees or grades with different penalties. In either event, a determination of which category the defendant’s offense falls into involves a question of fact. A novel and startling feature of the majority opinion is that it apparently leaves to the trial judge, under the general verdict, to determine that factual issue; and takes from the accused the right to have that vital factual issue determined by a jury. I believe that this fundamental issue of fact involves the sufficiency of the indictment, the verdict and the sentence or judgment.
“A verdict is the definitive answer of the jury and is sufficient in form if it decides the question in issue in such wise as to enable the court to enter judgment.” 23A C.J.S., Criminal Law, Section 1393, page 1054. A verdict must be responsive to and cover the offense charged. It is always necessary before entering judgment on the verdict that it appear what the jury found or intended to find. Williams v. Commonwealth, 153 Va. 987, 151 S. E. 151; State v. Frey, 92 W. Va. 323, pt. 1 syl., 114 S. E. 681. “A *493verdict of guilty need not specify the degree of the crime of which accused is convicted, where a particular degree only is charged in the indictment or submitted, as where the indictment charges only the lowest degree of the crime. If, however, a particular degree of an offense is charged, and the jury desires to find accused guilty of a lesser degree, the degree should be specified. Such a verdict should show every element of the lesser offense; but it is generally sufficient to describe the offense in the words of the statute, or their equivalents, and it has been held sufficient to refer to it by its statutory name.” 23A C.J.S., Criminal Law, Section 1406, page 1099. A verdict of a jury in a criminal case must always be read in connection with the indictment. The indictment, verdict and judgment in a criminal prosecution should be sufficiently definite, certain and specific to identify the crime involved. State v. Gargiliana, 138 W. Va. 376, 387-88, 76 S. E. 2d 265, 271. “The judgment and sentence must be responsive to, and in accord with, the verdict of the jury.” 24 C.J.S., Criminal Law, Section 1579, page 544. See also State v. Moneypenny, 81 W. Va. 362, pt. 1 syl., 94 S. E. 540.
In summary, the indictment, verdict and sentence or judgment must be sufficient on their face to disclose their complete harmony and responsiveness to each other. It is impossible in this case to look at the indictment, verdict and sentence severally, or to look at the three as a whole and determine specifically for what offense, or what degree of an offense, the accused was sent to the penitentiary.
I have undertaken to examine all the prior decisions of this Court cited in the majority opinion. I have not found a case in which this Court has held that a statute creates a single offense where the statute has defined different factual situations calling for different penalties. I have not found a case in which this Court has held, in case of a statute of this nature, that an indictment or verdict is sufficient without specifying the exact offense, or degree of the offense. I do not believe such a case can be found.
We are not concerned here with the doctrine of “included offenses” under which it is held that a charge of *494the greater includes a charge of the lesser offense. State v. Henson, 91 W. Va. 701, pt. 1 syl., 114 S. E. 273; State v. Murdpck, 90 W. Va. 628, pt. 1 syl., 111 S. E. 632; State v. Tomlin, 86 W. Va. 300, pt. 2 syl., 103 S. E. 110; State v. Douglass, 41 W. Va. 537, pt. 1 syl., 23 S. E. 724; State v. Howes, 26 W. Va. 110; 9 M.J., Indictments, Informations and Presentments, Section 29, page 677. In all such cases, however, the jury must, by its verdict, specify the lesser offense of which the accused has been found guilty. I am not aware of any case which has authorized the trial judge to make that factual determination following the return of a general verdict.
I believe cases cited in the majority opinion for the proposition that the statute creates a single offense are clearly distinguishable. Generally speaking, the statutes under consideration in such cases involved a definition of various ways in which a single offense, with a single penalty, might be committed. In State v. Masters, 106 W. Va. 46, 144 S. E. 718, involving, a charge under the “hit and run statute,” the Court stated (106 W. Va. at page 49) that “the whole transaction involves only one offense, and calls for the imposition of but a single penalty(Italics supplied.) State v. Miller, 89 W. Va. 84, 108 S. E. 487, involved a charge that the defendant did sell, give, offer, keep and store for sale alcoholic liquors under a statute thus defining a single offense with a single penalty. To the same effect see State v. Calhoun, 67 W. Va. 666, 69 S. E. 1098; State v. Miller, 89 W. Va. 84, 108 S. E. 487. State v. Perry, 101 W. Va. 123, 132 S. E. 368, involved a charge in a single count of both forgery and uttering. The Court stated (101 W. Va. at pages 125-26): “When several and distinct acts connected with the same general offense and subject to the same penalty are punishable separately and as distinct crimes where committed by different persons, they may be considered as representing steps or stages of the same offense, and combined in the same count, when committed by the same person at the same time.” (Italics supplied.) State v. Joseph, 100 W. Va. 213, 130 S. E. 451, involved a charge of owning, operating, maintaining, having possession of or an interest in a moon*495shine still, under a statute which created a single offense with a single penalty. See also State v. Garcia, 140 W. Va. 185, 191, 83 S. E. 2d 528, 531. State v. Wetzel, 75 W. Va. 7, 83 S. E. 68, involved a charge that a bank cashier embezzled money of the bank between different dates, designating the aggregate amount. The Court held that but a single offense of embezzlement was charged; and, of course, only one penalty was involved. To the same effect, see State v. Larue, 98 W. Va. 677, 128 S. E. 116. Conley v. State, 5 W. Va. 522, involved a charge that the accused sold liquor at his dwelling and at his store. The Court held that the effect of the indictment was to charge that the store and dwelling were in the same building and that, therefore, but a single offense was charged.
I have examined other cases. In State v. Haskins, 92 W. Va. 632, 636, 115 S. E. 720, 722, the Court stated: “These counts being for the same offense, and for the purpose of meeting the various phases which the evidence might develop, and which, if sustained, would entail the same punishment, there is clearly no misjoinder as to them.” (Italics supplied.) To the same effect, see State v. Shelton, 78 W. Va. 1, pt. 1 syl., 88 S. E. 454. In State v. Jarrell, 76 W. Va. 263, pt. 3 syl., 85 S. E. 525, the Court held that it was proper to charge in a single count that the accused unlawfully carried about his person certain revolvers, pistols, dirks and other weapons named in the statute. To like effect, see State v. Merico, 77 W. Va. 314, pt. 1 syl., 87 S. E. 370.
None of the cases referred to above involved more than a single offense; none of them involved grades or degrees of an offense; and none involved more than a single penalty. In all such cases, it was clear that only a single offense was involved; and upon a general verdict of guilty as charged in the indictment, the trial.-judge was called upon merely to impose the single penalty- prescribed.
I believe the view I am undertaking to express is sustained by authorities cited in the majority opinion. For instance, 5 Wharton’s Criminal Law and Procedure, Anderson, Section 1932, as quoted in the majority opinion, *496commences as follows: “When offenses apparently distinct, but arising under the same statute or out of the same transaction, and having the same punishments, * * *.” (Italics supplied.) Additional quotations from the same volume and from Joyce on Indictments refer to statutes creating a single offense having different component parts, or specifying various ways in which the single offense may be committed.
Section 14 of Article III of the Constitution of West Virginia provides that, in all trials for crime, “the accused shall be fully and plainly informed of the character and cause of the accusation, * * That provision has been carefully heeded by the Court, even with a strictness which I have regarded as unduly technical. State ex rel. Vandal v. Adams, Warden, 145 W. Va. 566, 115 S. E. 2d 489. In that background, I am at a loss to understand how -the Court can hold that the indictment in this case meets the constitutional requirement. Indeed, it is difficult to determine how the trial court avoided the necessity of imposing the death penalty. The jury returned a general verdict and did not find that the accused “be confined in the penitentiary,” which, as in a murder case, would have made a life sentence mandatory. I believe the general rule is that a general verdict results in a conviction of the highest grade of the offense charged.
It is by no means an inflexible rule that it is sufficient to charge an offense in the language of the statute. That rule must always yield to the paramount requirement that the accused must be fully and plainly advised of the character and cause of the accusation. State v. Ash, 139 W. Va. 374, syl., 80 S. E. 2d 339; State v. Zitzelsberger, 129 W. Va. 229, pt. 1 syl., 39 S. E. 2d 835; State v. Garner, 128 W. Va. 726, pt. 1 syl., 38 S. E. 2d 337; State v. Livesay, 127 W. Va. 579, pt. 1 syl., 34 S. E. 2d 24; State v. Lake, 112 W. Va. 665, 166 S. E. 384; State v. Simmons, 99 W. Va. 702, pt. 1 syl., 129 S. E. 757; State v. Mitchell, 47 W. Va. 789, pt. 2 syl., 35 S. E. 845.
The primary offense created by the statute is defined as “a felony,” punishment for which is the death penalty *497or life imprisonment, in the discretion of the jury. Two additional offenses are defined in the two provisos of the statute, one providing for a minimum sentence of twenty years and the other for a minimum sentence of ten years. The accused was entitled to be advised by the indictment which of the three offenses he was called upon to meet. They involve different factual situations. It is impossible to look at the jury verdict and determine of which of the three offenses defendant was found guilty. Certainly, beyond all cavil, it is impossible to look at the sentence imposed and determine that it is responsive to the verdict of the jury.
The majority opinion states that the prosecution waived the death penalty. I do not believe it is so clear that the prosecuting attorney can deprive the jury of the function of making that determination. In the recent case of Smith v. Winters, Judge, 146 W. Va. 1018, 124 S. E. 2d 240, 244, the Court stated: “The mere fact that the prosecuting attorney stated he was not going to ask for the death penalty did not change the offense. The grand jury indicted the defendant for a capital offense and the petit jury has the authority, under the statute and decided cases relating thereto, to determine whether or not the case is capital from the evidence introduced in the trial of the case.”
The majority opinion states that if, at the trial, the accused “felt that additional information should have been given him to enable him to make proper defense to the accusation or to inform him of the particular act or acts relied upon by the State for conviction, he could have moved the court to require the State to furnish a bill of particulars and to elect the specific act or acts upon which it relied for conviction.” I am not aware of any case in which this Court has ever held heretofore that the availability to the accused of these motions relaxes or qualifies the constitutional rule relating to the sufficiency of the accusation.
Section 14 of Article III of the Constitution of West Virginia guarantees the right to a jury trial in criminal cases. I do not understand that this provision guarantees *498to an accused person in a criminal case a trial by jury of only part of the case. I have never known this or any other similar constitutional provision to be so construed prior to this time.
The accused in this case was entitled, upon a proper indictment, to a jury determination, upon the evidence, of the question whether he should be convicted of the primary offense and whether, in that event, the penalty should be death or life imprisonment. He was also entitled to have a jury determination of the factual question whether his offense comes within the category for which a twenty-year minimum sentence is provided; or whether the factual situation is such that he falls in the most favorable category of guilt, for which a minimum sentence of ten years is provided. All such matters are supremely vital to the accused, because therein involved is a matter of his liberty in the whole area from the minimum sentence of ten years to the death penalty. In that area the indictment, verdict and the judgment are not matters to be treated casually or lightly.
It is perhaps a matter of supererogation in this day to emphasize the fundamental nature and importance of the right of trial by jury in criminal cases; or to point out again how carefully the function of the jury in such cases is zealously guarded against any invasion by the trial judge. “In jury cases, the jury are the sole and exclusive judge of, or they have the exclusive province to find, the facts, and the trial court cannot interfere with their exercise thereof. It is improper and outside the proper functions of the court for it to assume or usurp the proper functions of the jury in determining issues of fact; it is not authorized to pass on and decide questions of fact, or take a question of fact away from the jury and decide it itself, or indicate to the jury that some material facts, not admitted at the trial, are established beyond controversy, or declare or deny the existence of any fact bearing on the issues which is in contest.” 23A C.J.S., Criminal Law, Section 1120, page 270. To the same effect, see 31 Am. Jur., Jury, Section 15, page 22. In 31 Am. Jur., Jury, Section 7, page 13, it is pointed out that the right to trial by *499jury is immemorial; that it was brought from England to this country by the colonists and “it has become a part of the birthright of every free man.” The same section quotes the following language from Magna Carta: “* * * no freeman shall be hurt, in either his person or property * * *, unless by lawful judgment of his peers or equals, or by the law of the land * * *." See also State v. Stalnaker, 138 W. Va. 30, pt. 1 syl., 76 S. E. 2d 906.
I challenge anybody to look at the indictment, verdict and sentence in this case and determine whether the prisoner is now confined in consequence of the provision for a minimum sentence of twenty years or the provision for a minimum sentence of ten years. Whatever it may mean to anybody else, it means a difference of ten years to the prisoner. Could it be that upon proper indictment and instructions, the jury by its verdict would have provided 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 is not only important to the prisoner to know whether his minimum sentence is ten years; but it is also a matter of grave importance to the warden of the penitentiary and particularly to the parole authorities of this state.
I believe that the majority opinion and this dissent point up the unsatisfactory nature of the statute itself and perhaps emphasize the need for its reappraisal by the legislature. The inducements which prompted the inclusion of a minimum penalty of twenty years, and the still more favorable penalty of a minimum of ten years, are readily apparent. And yet, since no maximum sentences are provided, these inducements become comparatively meaningless. The statute would permit a judge, if he were so willed, to impose a sentence of life imprisonment in any one of the three factual categories defined by the statute. The only legal limitation in that respect is embodied in Article III, Section 5 of the Constitution of West Virginia which, in part, is as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties *500shall be proportioned to the character and degree of the offense.” See Ex Parte Garrison, 36 W. Va. 686, 689, 15 S. E. 417, 418; State v. McKain, 56 W. Va. 128, 131, 49 S. E. 2d 20, 21; State v. Woodward, 68 W. Va. 66, 69 S. E. 385; State v. Painter, 135 W. Va. 106, 63 S. E. 2d 86; State v. Burdette, 135 W. Va. 312, 63 S. E. 2d 69. It may be that the constitutional provision quoted above presents another cogent reason for the proposition that the record in this case (the indictment, verdict and judgment) should disclose on its face for which offense, or degree of an offense, the prisoner is confined.
For reasons stated, I would hold that the indictment, verdict and sentence are void; and I would discharge the accused from his present imprisonment without prejudice to any rights the state may have to proceed against him further in the circumstances of this case.