The defendant, Freeman Keller, was arrested on a warrant issued by a justice of the peace, in which it was charged that "the said Freeman Keller on the 13th day of April, 1935, in said Nicholas County, did unlawfully drive and operate a certain vehicle to-wit: an automobile on a certain public highway within this state while he the said Freeman Keller was then and there intoxicated and under the influence of intoxicating liquor drugs or narcotics." The defendant was taken before the justice who issued the warrant and a hearing was held thereon. *Page 297 No objection was made to the warrant before the justice, but a plea of not guilty was entered, a trial had, the defendant was found guilty, and fine and imprisonment imposed. From this action of the justice, an appeal was taken to the circuit court, and in that court, defendant filed what he terms a demurrer to the warrant and complaint, which demurrer the court sustained, and, on its own motion, certified the case to this court for review. The grounds of demurrer interposed were that the complaint and warrant set forth, disjunctively, at least three different modes of committing the offense charged therein, and that the accused was not fully and plainly informed of the character of the offense charged against him.
The statute on which this prosecution is based reads:
"No person shall drive or operate any vehicle, motor driven or otherwise, upon any public road or street in this state, while intoxicated, or under the influence of intoxicating liquor, drugs or narcotics." Code, 17-8-25.
It will be observed that the warrant under consideration uses the language of the statute except that the statute reads "intoxicated, or under the influence of intoxicating liquor, drugs or narcotics" while the warrant charges that the defendant was "intoxicated, and under the influence of intoxicating liquor drugs or narcotics."
The defendant contends that the warrant fails to advise him of the offense charged against him, claiming that he does not know whether he was charged with being under the influence of liquor, or drugs or narcotics, and that his constitutional rights were not regarded when he was called upon to answer a charge where, by reason of the uncertainty thereof, he was unable to prepare his defense. Conceding the constitutional safeguards which require that an accused party shall be fully and plainly informed of the accusation against him, we do not believe such safeguards were disregarded in the present case. The gravamen of the charge is intoxication, and the defendant was plainly charged with being intoxicated *Page 298 and under the influence of liquor, drugs or narcotics. Only one substantive offense is charged, namely, driving while intoxicated. The charge of being under the influence of liquor, drugs or narcotics is a part of and merged in the principal offense alleged.
It is immaterial what caused the intoxication, and the only prejudice to the defendant would be that he might be able to defend himself more easily if he were charged with being intoxicated from the use of either drugs or narcotics, and be able to show that the opportunity for obtaining such was more difficult than if he were intoxicated in the usual way from the use of liquor. But this is only a remote possibility and does not warrant the strained conclusion that the defendant did not know with what he was charged. It is quite apparent from reading the statute that it was intended to cover not only intoxication, but being under the influence of an intoxicant, to avoid the well known difficulty of determining just when a man is intoxicated in the eyes of the law, and, particularly a jury. The charge in the warrant was that the defendant was intoxicated while driving a car on a public highway, and the words following "and under the influence of intoxicating liquor, drugs or narcotics" are merely a further definition of the condition of the defendant at the time of his arrest. The offense for which the defendant should answer was that of intoxication while driving an automobile on a public highway in this state, and how he reached that state was not material, as respects the agency which produced that condition.
A phase of the question under consideration was discussed by Judge Kenna in the case of State v. Dawson, 117 W. Va. 125,184 S.E. 253, wherein it is held, by a divided court, that the use of the word "or" in connection with gaming devices made an indictment subject to demurrer. It is not intended to reverse that ruling or change the general rule which frowns upon the use of the disjunctive in charging a defendant with crime. However, there is a border line which permits the use of the disjunctive in cases where its use does not prejudice, in any reasonable way, the rights of a defendant. The rule is *Page 299 that "an indictment must not state the offense disjunctively, when it is thereby left uncertain what is really intended to be relied on as the accusation." State v. Charlton, 11 W. Va. 332, 27 Am. Rep 603. This lays down a rule of reason which it is safe to follow, and which does not prevent a court from holding an indictment bad where the disjunctive is used and where its use obscures and makes uncertain the accusation against the defendant. In the present case, the defendant could not possibly have been misled by the charges contained in the warrant, and to hold otherwise would be to resort to technical rules of construction which are in no sense warranted.
Another consideration supports the position taken herein. At common law, a bill of particulars was unknown in criminal law practice. Now, the use of such is not infrequent, and, in proper cases, a refusal to furnish is held error.State v. Lewis, 69 W. Va. 472, 72 S.E. 475, Ann. Cas. 1913A, 1203; State v. Dawson, supra. If a defendant, in a proper case, has the right to require a bill of particulars to clarify the charge against him, such right argues that he should not be heard to complain of some doubtful allegation in an indictment which a bill of particulars would make clear. Without holding, in advance of a motion, that the case at bar is one in which the defendant had the right to require a bill of particulars, it is clear that under our modern practice that avenue is open to a defendant, who, in good faith, seeks to have the charge against him clarified.
The demurrer to the warrant should have been overruled. The action of the trial court is reversed.
Reversed.