J. W. Feuchtenberger
Stone, McGhee, Feuchtenberger
& Barringer
Bluefield, West Virginia
Attorney for the Appellant

Joanna I. Tabit
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee

JUSTICE MILLER delivered the Opinion of the Court.

     1.    "[Under Article III, Section 14 of the West Virginia Constitution,] [a]n indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense." Syllabus Point 1, State v. Furner, 161 W. Va. 680, 245 S.E.2d 618 (1978).

     2.    "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syllabus Point 3, State v. Hall, 172 W. Va. 138, 304 S.E.2d 43 (1983).

     3.    Upon the reversal of a criminal case on appeal, the State is generally not precluded by double jeopardy principles from procuring a new indictment and retrying the defendant, except when a criminal conviction is set aside because of insufficient evidence.

     4.    In an indictment charging a corporate officer, it is not essential that the corporate name be mentioned, so long as the officer is identified and the requisite criminal elements are outlined.

     5.    Officers, agents, and directors of a corporation may be criminally liable if they cause the corporation to violate the criminal law while conducting corporate business.

    Kennie Childers, the defendant below, appeals the final order of the Circuit Court of McDowell County, dated May 23, 1990, denying his motions for judgment of acquittal and for a new trial. On appeal, the defendant contends that the indictment under which he was tried was fatally defective; we agree, and we reverse the defendant's conviction.

    On June 8, 1989, Mr. Compton went to the mine site and asked the defendant whether he had posted the wage bond. When Mr. Compton learned that the defendant had not complied, he obtained authorization from the Commissioner to issue a cease and desist order as provided for in W. Va. Code, 21-5-15(c)(1) (1989).See footnote 2 Under the terms of the cease and desist order, Olde Fern, Inc., had five days to secure a wage bond. If within that time the corporation did not post a wage bond, it was prohibited from further operations. The defendant was informed that if the corporation violated the cease and desist order, he would be subject to possible incarceration, a fine, or both.See footnote 3

    Six days later, Mr. Compton returned to the job site to discover the coal mine and preparation plant operating at full capacity. Because the defendant had still failed to secure a wage bond, Mr. Compton obtained a felony warrant for Mr. Childers' arrest.

    In October, 1989, the defendant was indicted by a grand jury for failing to secure a wage bond. The indictment recited that the defendant "committed the offense of 'Failure to Provide a Bond' by unlawfully, feloniously, knowingly, willfully and with intent to deprive employees of their wages and fringe benefits . . . failing to provide and maintain a bond as required by Chapter 21, Article 5, Section 14 of the West Virginia Code[.]"

    The defendant moved to quash the indictment because it did not adequately inform him of the nature of the crime charged or

state the elements of the statutory offense. The circuit court denied this motion. Following a two-day jury trial, the defendant was convicted, sentenced to one-to-three years incarceration, and fined $25,000.See footnote 4

    The Sixth Amendment to the United States Constitution commands, in part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]" In United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588, ___ (1875), the United States Supreme Court

outlined the minimum criteria an indictment must meet in order to comply with the Sixth Amendment:
    "The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone."

Thus, if the averments of the indictment are sufficient to enable the defendant to prepare his defense and to plead former jeopardy after acquittal or conviction, the constitutional requirement is met. See Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057 (1906). See generally M. Rhodes, Orfields Criminal Procedure Under the Federal Rules § 7.7 (2d ed. 1985).

    We adopted a similar test under Article III, Section 14 of the West Virginia ConstitutionSee footnote 5 in Syllabus Point 1 of State v. Furner, 161 W. Va. 680, 245 S.E.2d 618 (1978):
            "An indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense."

See also State v. Fitcher, 175 W. Va. 681, 337 S.E.2d 918 (1985); State v. Rector, 167 W. Va. 748, 280 S.E.2d 597 (1981); State v. Ash, 139 W. Va. 374, 80 S.E.2d 339 (1954).

    In Syllabus Point 3 of State v. Hall, 172 W. Va. 138, 304 S.E.2d 43 (1983), we adopted a test to assist prosecutors in preparing an indictment for a statutory offense:
            "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based."

See also State v. Young, ___ W. Va. ___, 406 S.E.2d 758 (1991); State v. Satterfield, ___ W. Va. ___, 387 S.E.2d 832 (1989); State v. Nicastro, 181 W. Va. 556, 383 S.E.2d 521 (1989); State v. Knight, 168 W. Va. 615, 285 S.E.2d 401 (1981); State v. Parks, 161 W. Va. 511, 243 S.E.2d 848 (1978).

    For example, in State v. Knight, supra, the defendant was convicted of indecent exposure. One of the elements of that crime is lack of consent by the victim. Because the indictment failed to allege this element, we held in Syllabus Point 2 of Knight:
            "The State's failure to provide in the indictment sufficient information from which the defendant could determine the statute he was being charged with violating and to state each element involved in the crime did not give the defendant adequate notice from which he could prepare a defense

and is grounds for reversal of the conviction obtained thereunder."

See also State v. Parks, supra; State ex rel. Cain v. Skeen, 137 W. Va. 806, 74 S.E.2d 413 (1953); Scott v. Harshbarger, 116 W. Va. 300, 180 S.E. 187 (1935).See footnote 6

    The State attempted to prove that the defendant violated W. Va. Code, 21-5-15(c)(1), by failing to obey the Commissioner's cease and desist order.See footnote 8 This subsection allows the Commissioner to issue an order requiring an employer to cease and desist operations if the employer has failed to post the wage bond required under W. Va. Code, 21-5-14. If the employer disobeys the cease and desist order and "continues to engage in construction work or the severance, production or transportation of minerals without an approved bond after such specific period [the employer] shall be guilty of a felony[.]" W. Va. Code, 21-5-15(c)(1). Only when the employer fails to comply with the cease and desist order issued pursuant to W. Va. Code, 21-5-15(c)(1), may felony charges be brought.

    The indictment in this case does not refer to W. Va. Code, 21-5-15(c)(1), but rather to W. Va. Code, 21-5-14, which contains no criminal penalties. Moreover, the indictment fails to state all of the essential elements of W. Va. Code, 21-5-15(c)(1). Consequently, the indictment was clearly void, and, for this reason, the defendant's conviction must be reversed.

    Even though we are reversing because the indictment was defective, it is generally held that upon the reversal of a criminal case on appeal,See footnote 9 the State is not precluded by double jeopardy principles from procuring a new indictment and retrying the defendant, except when a criminal conviction is set aside because of insufficient evidence. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). See, e.g., Montana v. Hall, 481 U.S. 400, 107 S. Ct. 1825, 95 L. Ed. 2d 354 (1987); United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978); Ball v. United States, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 2d 300 (1896). The traditional basis for this rule was explained by Justice Harlan in United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448, 451 (1964):

    "Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution."

    In State v. Adkins, 170 W. Va. 46, 289 S.E.2d 720 (1982), we reversed the defendant's conviction because of a defective indictment. After some discussion of double jeopardy and our applicable criminal statutes, we stated that "double jeopardy does not bar a retrial of the defendant upon an indictment charging him as an aider and abettor[.]" 170 W. Va. at 51, 289 S.E.2d at 725. In other cases, we have recognized, without any elaborate discussion, the right of the State to procure a new indictment where the original indictment was declared void on appeal. See State ex rel. Starr v. Halbritter, 183 W. Va. 350, 395 S.E.2d 773 (1989); State v. Satterfield, supra; State ex rel. Pinson v. Maynard, 181 W. Va. 622, 383 S.E.2d 844 (1989); State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959).

See also United States v. Park, 421 U.S. 658, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975); United States v. Wise, 370 U.S. 405, 82 S. Ct. 1354, 8 L. Ed. 2d 590 (1962); United States v. Sherpix, Inc., 512 F.2d 1361 (D.C. Cir. 1975); United States v. McDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991); United States v. Amrep Corp., 560 F.2d 539 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 731, 54 L. Ed. 2d 759 (1978); Clifton v. State, 51 Del. 339, 145 A.2d 392 (1958); State v. Placzek, 380 A.2d 1010 (Me. 1977); Attorney General v. Ankerson, 148 Mich. App. 524, 385 N.W.2d 658 (1986); People v. Byrne, 128 Misc.2d 448, 494 N.Y.S.2d 257 (1985); State v. Seufert, 49 N.C. App. 524, 271 S.E.2d 756 (1980), review denied, 301 N.C. 726, 276 S.E.2d 289 (1981); Commonwealth v. Klinger, 369 Pa. Super. 526, 535 A.2d 1060, appeal denied, 520 Pa. 582, 549 A.2d 915 (1988); State v. Flake, 83 S.D. 655, 165 N.W.2d

55 (1969); State v. Lunz, 86 Wis. 2d 695, 273 N.W.2d 767 (1979). See generally 18B Am. Jur. 2d Corporations § 1896 (1985).

    Moreover, as explained by the Virginia Supreme Court in Burgeois v. Commonwealth, 217 Va. 268, ___, 227 S.E.2d 714, 718 (1976): "An officer cannot avoid criminal responsibility for an illegal act on the ground that it was done in his official capacity or through the instrumentality of the corporation which he controls and dominates and which he has employed for that purpose." (Citation omitted). Finally, in an indictment charging a corporate officer, it is not essential that the corporate name be mentioned, so long as the officer is identified and the requisite criminal elements are outlined. See State v. Picheco, 2 Conn. Cir. 584, 203 A.2d 242 (1964). See also State v. Pritt, 178 W. Va. 147, 358 S.E.2d 231 (1987).

    We implicitly recognized this general rule in Mullins v. Venable, 171 W. Va. 92, 297 S.E.2d 866 (1982), where we discussed the civil liability of employers under the Act. In Mullins, thirteen former employees of Venable and Billups Corporation sued James T. Venable, individually, as an officer of the corporation, seeking to recover wages, fringe benefits, and liquidated damages. The sole issue on appeal was whether the Act "authorizes employees of a corporation to bring suit against an officer of the corporation, individually, to recover wages, fringe benefits, and

liquidated damages, where the officer knowingly permits the corporation to violate the provisions of the Act." 171 W. Va. at 93, 297 S.E.2d at 868. We found that the Act did authorize such a cause of action because "corporate officers have a duty to see that their corporation obeys the law[.]" 171 W. Va. at 96, 297 S.E.2d at 871. (Citations omitted).

    From the foregoing law, we conclude that officers, agents, and directors of a corporation may be criminally liable if they cause the corporation to violate the criminal law while conducting corporate business.See footnote 10

corporation engaged in or about to engage in construction work, or the severance, production or transportation (excluding railroads and water transporters) of minerals, shall, prior to engaging in any construction work, or the severance, production or transportation of minerals, furnish a bond on a form prescribed by the commissioner, payable to the state of West Virginia, with the condition that the person, firm or corporation pay the wages and fringe benefits of his or its employees when due."

of Labor or cease and desist further operations in McDowell and Wyoming County, State of West Virginia, effective 5:00 p.m., June 13th, 1989. Any person, firm or corporation who continues to engage in construction work or the severance, production or transportation of minerals without an approved bond after such specified period shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than Five Thousand Dollars nor more than Thirty Thousand Dollars, or imprisoned in the penitentiary not less than one nor more than three years, or both fined and imprisoned."

            "At any time the commissioner determines that a person, firm or corporation has not provided or maintained an adequate bond, as required by section fourteen of this article, the commissioner shall issue a cease and desist order . . . requiring that said person, firm or corporation either post an adequate bond or cease further operations in this state within a period specified by the commissioner; . . . Any person, firm or corporation who continues to engage in . . . work . . . without an approved bond after such specified period shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than thirty thousand dollars, or imprisoned in the penitentiary not less than one nor more than three years, or both fined and imprisoned."