Lycans v. Bordenkircher

Haden, Chief Justice,

dissenting:

I respectfully dissent for two reasons: (1) robbery by force is not a capital offense; and (2) assuming arguendo that robbery by force is a capital offense, the circuit court lost jurisdiction of the person and subject matter when the criminal charge was subsequently reduced.

I

The principal holding of this case is premised upon the assumption that robbery by force, as W. Va. Code 1931, 61-2-12, as amended, describes the offense, or “armed robbery,” as the crime was and is known at common law, is a capital offense. This is so because a long line of West Virginia decisions have recognized or held that a sentencing court is permitted to impose a maximum sentence of life imprisonment upon one who is convicted of the crime. See for example, State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 424, 76 S.E.2d 283, 287 (1953), cert. den., 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411 (1953) and the several decisions relied upon by the majority. The *144federal courts, likewise, have recognized and acceded to this interpretation of the West Virginia statute. See Young v. Boles, 343 F.2d 136 (4th Cir. 1965); Page v. Coiner, 283 F. Supp. 500 (N.D. W. Va. 1968); Young v. Boles, 270 F. Supp. 847 (N.D. W. Va. 1967).

In the several decisions of this Court which address the point, however obliquely, it is recognized that the statute prescribes no maximum penalty for “armed robbery,” although explicitly providing a minimum definite term of “not less than ten years.” See, State ex rel. Wright v. Boles, 150 W. Va. 381, 146 S.E.2d 524 (1966). Departing from the expressed language, prescribing the minimum term, to the implied, regarding the maximum, this Court has inferred that the Legislature, by prescribing no maximum term, intended and authorized courts to exercise discretion and to impose a sentence of life imprisonment in the proper case. See, State v. Newman, 108 W. Va. 642, 152 S.E. 195 (1930).

Only one decision of this Court implies that “armed robbery” is a capital offense. In Franklin and Ponto v. Brown, 73 W. Va. 727, 81 S.E. 405 (1914), the Court observed as follows:

“Robbery, from the earliest times, has always been regarded a crime of the gravest character. At common law the punishment for robbery was death, with or without benefit of clergy, according to varying statutes. 4 Sharswood’s Blackstone, 243. Now by statute the punishment for robbery in England is penal servitude for life. 9 Laws of England, (Earl of Halsbury) 664, section 1333. While the punishment inflicted on petitioners in this case is the same as prescribed in the English statute, the extreme limit under our statute, our law allows a lesser punishment and down to the minimum punishment prescribed.” Id. at 729-30 of the West Virginia Report.

No decision of this Court, until now in the instant appeal, has held that “armed robbery” should be treated as a capital .offense. I do not think that the majority’s interpretation of the statute is constitutionally permissi*145ble nor is it justifiable under accepted rules of statutory construction.

W. Va. Code 1931, 61-2-12, as amended, does not define robbery, but it does prescribe the punishment for four methods of robbery and of attempts to commit robbery. State ex rel. Vandal v. Adams, 145 W. Va. 566, 115 S.E.2d 489 (1960); Franklin and Ponto v. Brown, supra; State v. McCoy, 63 W. Va. 69, 59 S.E. 758 (1907). First, the statute prescribes the penalty for “armed robbery” for a definite term of not less than ten years; second “unarmed robbery” or robbery accomplished by other means is punishable by sentence of “not less than five nor more than eighteen years”; third “bank robbery” accomplished by force, etc., but without the use of a dangerous weapon or device, is punishable by a sentence of “not less than ten nor more than twenty years”; and fourth, “bank robbery” accomplished by the use of a dangerous weapon or device is punishable by a sentence of “not less than ten nor more than twenty-five years.” Id.

The foregoing statute is very specific in prescribing punishments which provide for definite terms for different methods of committing the common-law offense. As early as 1849, it has been the law of the Virginias that “[a] common-law offense for which punishment is prescribed by statute shall be punished only in the mode so prescribed.” W. Va. Code 1931, 61-11-3. This statute of ancient origin should govern the application of the precisely delineated punishments prescribed in Code 61-2-12, supra. Where the Legislature has stated a policy in explicit terms, it seems a violation of W. Va. Const., Art. V, § 1 occurs when the Judiciary fashions a penalty for a crime in a manner different and more onerous than that prescribed by the statutes. Likewise, the accepted rule of statutory construction should apply in this instance. “Penal statutes are construed strictly against the state and favorably to the liberty of the citizen.” 17 M.J. Statutes §67 (1951); Accord: State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970); Waller v. Commonwealth, 192 Va. 83, 63 S.E.2d 713 (1951).

*146Apparently, the Judiciary continues to regard first degree murder, forcible rape, kidnapping and armed robbery, — four heinous offenses, on an absolute parity as regards extent of punishment. I am not in general disagreement with that policy. The Legislature, however, has chosen a different policy, which I believe, governs the sentence which courts may impose. With the abolition of the death penalty in 1965, the Legislature amended and reenacted the statutes prescribing punishment for murder, kidnapping and rape and expressly retained life imprisonment as the ultimate penalty for these respective crimes. See W. Va. Code 1931, 61-2-2, 14a and 15, as respectively amended. As previously noted, however, the robbery punishment statute did not and does not explicitly prescribe life imprisonment as a penalty. Although the offense of armed robbery may have carried the death penalty at common law, Franklin and Ponto v. Brown, supra, the Legislature has never regarded this crime as a capital offense in West Virginia. Accordingly, it seems both an anachronism and a clearly erroneous interpretation for the Court to so characterize it in 1975.

Finally, it is incongruous and regressive to imply that a juvenile is subject to the concurrent jurisdiction of a criminal court on the bare implication that “armed robbery” is or was a capital offense at common law. This curious result could be the cause of incarceration of a juvenile for life in an adult offender facility. This result, whether inadvertent or intentional, does not square with the State’s responsibilities, as paren patriae, to infants. In almost all other aspects of this relationship, this Court and the Legislature have been zealous, benevolent and progressive in extending, securing and protecting the special rights of infants.

II

Although the appellant Lycans was initially charged with the crime of “armed robbery,” he was tried and convicted, upon his guilty plea, for the crime of “unarmed robbery.” When the State determined and the *147court approved of Lycans’ plea of guilty to a lesser charge, which was not even arguably a capital offense, and where it was known that Lycans was at the time under the age of eighteen years, the circuit court lost its concurrent jurisdiction of the subject matter and was required “immediately” to transfer the case to the juvenile court having exclusive jurisdiction of the cause. See W. Va. Code 1931, 49-5-3, as amended; but cf., State ex rel. Hinkle v. Skeen, 138 W. Va. 116, 75 S.E.2d 223 (1953).

The decision of State ex rel. Campbell v. Wood, 151 W. Va. 807, 155 S.E.2d 893 (1967) is inapposite to the facts of this appeal and its Syllabus point 2., quoted and adopted by the majority opinion, does not support the holding of the majority. The Campbell case holds that an infant accused who is charged with a capital offense “may be tried for such crime in any court having jurisdiction of such offense” (Emphasis supplied), Syllabus point 2., id. It does not hold that a circuit court, once having acquired concurrent jurisdiction of a juvenile charged with a capital offense, retains such jurisdiction when the juvenile is found guilty of a non-capital offense.

I am, therefore, of the opinion that Carl Lycans became entitled to be transferred to the juvenile court, as a matter of law, i.e. by the mandatory requirements of W. Va. Code 1931, 49-5-3, as amended.