Filed: July 16, 1993
Robert R. Skinner
Charles Town, West Virginia
Attorney for the Appellee
John M. Hedges
Charleston, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
The statutory complaint form in W.Va. Code § 61-3-39f is
constitutionally sound; it requires a detailed itemization of the
relevant facts and provides a sufficient basis for an independent
determination of whether there is probable cause to proceed with a
worthless check prosecution.
The appellant, Magistrate Patricia A. Noland of Jefferson
County, West Virginia,See footnote 1 appeals from a writ of prohibition granted
by the Circuit Court of Jefferson County, ordering that she halt
proceedings against the appellee, Cindy Walls, on four pending
worthless check charges.
Cindy Walls was charged with four counts of issuing
worthless checks in violation of W.Va. Code § 61-3-39a et seq.
Complaints filed in magistrate court described four checks which
were drawn on Cindy Walls' account with Dominion Federal Savings &
Loan Association and payable in varying amounts to Barnhart's
grocery store. The complaints allege that Walls unlawfully issued
and delivered these checks to Barnhart's in February, 1991, in
exchange for groceries and cash. The dishonored checks were filed
with the complaints. Information stamped and written on each check
indicates that the checks were dishonored because the "account does
The complaints were prepared on magistrate court forms
which conform to the language of and provide the information
required under W.Va. Code § 61-3-39f. The payee under these bad
checks made the complaints under the required oath before a
magistrate court clerk, as permitted by W.Va. Code § 61-3-39f.
Based upon the four complaints, warrants for Walls'
arrest were issued by a Jefferson County magistrate between
February 25 and March 12, 1991. On March 4, 1992, Walls filed a
petition for a writ of prohibition in which she alleged that the
warrants were void because (1) the complaints did not contain a
statement showing probable cause for the issuance of the warrants,
and (2) the complaints were not sworn before a magistrate or other
In the circuit court proceedings, the parties stipulated
that the complainants appeared before a magistrate court clerk and
gave sworn testimony on the worthless-check allegations. It was
further stipulated that the subsequent warrants issued by the
Jefferson County magistrates were based solely upon the sworn
complaints and the original checks which were tendered to the
magistrate court clerk.
After two hearings on the petition, the Circuit Court of
Jefferson County issued a letter opinion on June 1, 1992, and
entered a final order on June 11, 1992. The lower court ordered
that the warrants be dismissed and concluded that W.Va. Code § 61-3-39a et seq. is unconstitutional because it "permits the issuance
of a warrant of arrest upon an information or complaint which is
merely conclusory in nature and sets forth only the statutory
elements of the offense and . . . permits such complaint to be
sworn to before a non-judicial officer . . . ."
The appellant now appeals from the June 11, 1992, final
order and argues that the circuit court erred when it ruled that
W.Va. Code § 61-3-39f was invalid because it permitted conclusory
complaints which set forth only the statutory elements of the
worthless check offense. For the reasons set forth below, we agree
that the lower court erroneously concluded that the statutory
complaint form in W.Va. Code § 61-3-39f allows worthless check
arrest warrants to be issued upon inadequate information.
"The principal function of a complaint 'is as a basis for
an application for an arrest warrant.'" Gaither v. United States,
413 F.2d 1061, 1076 (D.C.Cir. 1969).See footnote 2 "The complaint is a written
statement of the essential facts constituting the offense charged."
W.Va.R.Crim.P. 3 and R.Crim.P. for the Mag.Cts. of W.Va. 3. West
Virginia Code § 61-3-39f (1992) sets forth the following complaint
form for worthless check violations:
A complaint for warrant for violations of section thirty-nine-a of this article shall be deemed sufficient if it is in form substantially as follows:
"State of West Virginia
County of _________, to wit:
___________, upon oath complains that:
(a) Within one year past, on the ___ day
of ______, 19__, in the county aforesaid
_____________ did unlawfully issue and deliver
unto _______________ his certain check of the words and figures as follows:
___________, 19___ No. ____
(Name of Bank)
Pay to the order of _________ $____ Dollars
when he the said ________ did not have funds
on deposit in and credit with said bank with
which to pay same upon presentation against
the peace and dignity of the State of West
Virginia and he the said ______ therefore
prays a warrant issue and that said _________
may be apprehended and held to answer the said warrant and dealt with in relation thereto according to the law.
The appellee maintains that this Code section is unconstitutional
because a complaint may contain only a recitation of the statutory
elements of the offense, without requiring a statement of the
underlying facts showing probable cause. More specifically, the
appellee contends that the statute "requires no underlying facts to
establish the actual identity of the alleged perpetrator or the
basis of knowledge and reliability of the complainant."
It appears that the appellee has engaged in the kind of
hypertechnical overanalysis that is unnecessary to establish
probable cause in this type of case. In the often complicated
world of criminal offenses, a bad check prosecution is a common and
comparatively simple proceeding.See footnote 3 As a result, and as the
appellant rather succinctly points out, the facts supporting a
complaint are necessarily limited, because "the nature of this
offense does not lend itself to diverse details . . . . A
magistrate cannot ignore a complaint just because the essential
facts of the offense do not require a probing analysis of extrinsic
circumstances." "Some offenses are subject to putative
establishment by blunt and concise factual allegations." Jaben v.
United States, 381 U.S. 214, 223, 85 S.Ct. 1365, 1370, 14 L.Ed.2d
345, 352 (1965). In this case, the four bad checks in question
were attached to the complaint. The checks supplement the
complaint by explaining much of what transpired, thereby providing
an additional informational basis upon which a magistrate may find
It is important to reiterate that the complaint for a
warrant is only "the first of many steps in a criminal prosecution.
Its essential function is informative, not adjudicative. 'It is
enough that a fair-minded magistrate could conclude that the facts
and circumstances alleged justify further criminal proceedings and
that the charges are not merely capricious.'" State v. Hoffman,
106 Wis.2d 185, 316 N.W.2d 143, 152-53 (Wis.App. 1982) (quoting
State v. Olson, 75 Wis.2d 575, 583, 250 N.W.2d 12, 17 (1977).
In response to the appellee's charge that W.Va. Code
§ 61-3-39f requires no information which establishes "the actual
identity of the alleged perpetrator," we point out that W.Va. Code
§ 61-3-39g gives ample consideration to the person who stands
accused of writing a bad check. No warrants are issued until the
person believed to be the drawer of the check has been notified
that the check was dishonored, and even then, the drawer may avoid
the issuance of a warrant:
Such notice shall give the drawer of any such check, draft or order ten days within which to make payment to magistrate court. In the event such drawer pays the amount of the check plus court costs to the magistrate court within the ten day period no warrant shall issue. The payment may be made to the magistrate court in person or by mail by cash, certified check, bank draft or money order and, in the event such payment is made by mail, the magistrate court clerk shall forthwith mail to the maker of such check the receipt hereinbelow required. In the event such total amount is not so paid the court shall proceed with the issuance of the warrant as is provided by law.
W.Va. Code § 61-3-39g. Permitting an accused to respond prior to
the issuance of a warrant provides a reasonable assurance against
As to the need for allegations in the complaint which
address the element of intent, we point out that W.Va. Code § 61-3-39c provides that the existence of a dishonored check with the
reason for its dishonor printed on it is prima facie evidence that
the check was written with knowledge of the insufficiency of funds.
The rationale behind the permissive inference relevant to state-of-mind in bad check cases was explained the Supreme Court of Kansas
in State v. Haremza, 213 Kan. 201, 207, 515 P.2d 1217, 1223 (1973):
Where a person has written an insufficient funds check and receives property or other consideration therefor from the payee of the check, and further, where the maker of the check has been notified that the check has not been paid and fails to make payment within seven days after such notice, we find that there is nothing unreasonable or arbitrary in making such fact prima facie evidence of fraudulent intent or guilty knowledge. It appears to us that in the usual course of things where one person gives another a check, he intends to induce such person to give up some property right in reliance that the check will be paid on presentation. The notice provision gives to the drawer of the check a final opportunity in which to make the check good and is peculiarly for his benefit. In a worthless check case it is obviously the defendant who has the more convenient access to evidence relating to his intent and knowledge. These are matters within his own head and usually are not within the knowledge of the prosecutor.
See also State v. Adams, 3 Ohio App.3d 50, 443 N.E.2d 1047 (Ohio
In State v. Adams, 152 Wis.2d 68, 447 N.W.2d 90 (Wis.App.
1989), the Court of Appeals of Wisconsin stated that "[t]o be
sufficient, a complaint must only be minimally adequate. This is
to be evaluated in a common sense rather than a hypertechnical
manner, in setting forth the essential facts establishing probable
cause." Id. at 92, citing State v. Gaudesi, 112 Wis.2d 213, 219,
332 N.W.2d 302, 305 (1983). The court outlined the following
minimum requirements for a sufficient criminal complaint:
A complaint is sufficient under this standard if it answers the following five questions: "(1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so? or How reliable is the informant?"
Id., citing State v. White, 97 Wis.2d 193, 203, 295 N.W.2d 346, 350
The statutory form for worthless check violations in W.Va. Code § 61-3-39f requires that all of this information be
contained in the complaint for a warrant. As a result, the
probable cause determination in the case now before us was based on
the following information:
(1) the petitioner's name and address (who);
(2) that she allegedly unlawfully issued and
delivered the specifically described
checks without ample funds on deposit in
or credit with the drawee institution
(3) the date of the check (when) and the place
it was tendered (where);
(4) that there were not sufficient funds on
deposit in or credit with the drawee
institution to pay the check upon
presentation (why charged); and
(5) the name and sworn information of the
complainant (who says so).
In Jaben v. United States, supra, the United States
Supreme Court explained that the purpose of a complaint is to
enable a magistrate
. . . to make a neutral judgment that resort to further criminal process is justified. A complaint must provide a foundation for that judgment. It must provide the affiant's answer to the magistrate's hypothetical question, "What makes you think that the defendant committed the offense charged?" This does not reflect a requirement that the Commissioner ignore the credibility of the complaining witness. There is a difference between disbelieving the affiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon factual allegations necessarily entails some degree of reliance upon the credibility of the source. See, e.g., Johnson v. United States, 333 U.S. 10, 13, 92 L.Ed.436, 439, 68 S.Ct. 367. Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. Compare United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741. It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.
Jaben, 381 U.S. at 224-25, 85 S.Ct. at 1371, 14 L.Ed.2d at 353
It is clear that in this case the information contained
in the complaint, together with the four attached dishonored
checks, provided a sufficient basis for the complainant's answer to
that hypothetical question, "What makes you think that the
defendant committed the offense charged?". Consequently, we
conclude that the statutory complaint form in W.Va. Code § 61-3-39f
is constitutionally sound; it requires a detailed itemization of
the relevant facts and provides a sufficient basis for an
independent determination of whether there is probable cause to
proceed with a worthless check prosecution.
The lower court also concluded that W.Va. Code § 61-3-39f
is unconstitutional because it states, in relevant part, that "a
complaint for warrant for violations of section thirty-nine-a of
this article need not be made upon oath before a magistrate but may
be made upon oath before any magistrate court clerk . . . ." The
appellee argues that the complaints in this case are invalid
because they were not sworn before a magistrate.
Rule 3 of the West Virginia Rules of Criminal Procedure
and Rule 3 of the Rules of Criminal Procedure for the Magistrate
Courts of West Virginia in effect in February and March, 1991,
provide that "[t]he complaint is a written statement of the
essential facts constituting the offense charged. It shall be made
upon oath before a magistrate."See footnote 4 However, Article VIII, Section
12 of the West Virginia Constitution states, in part, that:
The legislature may designate the courts and officers or deputies thereof who shall have the power to issue, execute or serve such writs, warrants or any other process as may be prescribed by law, and may specify before what courts or officers thereof such writs, warrants or other process shall be returnable . . . .
Thus, the Legislature is clearly permitted to empower
magistrate court clerks with the authority to take sworn complaints
for worthless check violations, as it did in W.Va. Code § 61-3-39f.
This type of delegation in a simple proceeding such as a worthless
check prosecution is consistent with the purpose expressed in Rule
2 of the West Virginia Rules of Criminal Procedure and Rule 2 of
the Rules of Criminal Procedure for the Magistrate Courts of West
Virginia, which state that "[t]hese rules are intended to provide
for the just determination of every criminal proceeding. They
shall be construed to secure simplicity in procedure, fairness in
administration, and the elimination of unjustifiable expense and
This conclusion is also consistent with the United States
Supreme Court's decision in Shadwick v. City of Tampa, 407 U.S.
345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), in which the Court
upheld the issuance of warrants by the Clerk of the Municipal Court
of Tampa, and thereby rejected "any per se invalidation of a state
or local warrant system on the ground that the issuing magistrate
is not a lawyer or judge." 407 U.S. at 352. The Court explained
that "[c]ommunities may have sound reasons for delegating the
responsibility of issuing warrants to competent personnel other
than judges or lawyers. Many municipal courts face stiff and
unrelenting caseloads. A judge pressured with the docket before
him may give warrant applications more brisk and summary treatment
than would a clerk." Id. at 352-53. The Court concluded that
"[s]tates are entitled to some flexibility and leeway in their
designation of magistrates, so long as all are neutral and detached
and capable of the probable-cause determination required of them."
Id. at 354.
Because we have determined that W.Va. Code § 61-3-39f is
constitutional, we reverse the June 11, 1992, order of the Circuit
Court of Jefferson County and remand this case to that court for
proceedings consistent with this opinion.
Footnote: 1Jefferson County Prosecutor, Michael D. Thompson, was also named as a respondent in the circuit court action below.
Footnote: 2See 8 J.W. Moore, Federal Practice § 3.02.
Footnote: 3In Harman v. Frye, ___ W.Va. ___, 425 S.E.2d 566 (1992), this Court addressed the issue of private citizens bringing criminal complaints before magistrates without prior evaluation or investigation of the complaint by proper law enforcement officials. We concluded that "[e]xcept where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizens without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency." Id. at syl. pt. 1. However, one of the specific statutory exceptions "where a citizen's right to file a complaint would be preserved involves the issuance of a worthless check. Citizens have a statutory right, under W.Va. Code, 61-3-39a , to file complaints for the issuance of a worthless check." Id. at 575. This Court recognized that "[t]he legislature has most likely given citizens the right to file a complaint for the issuance of worthless checks because of the volume of these types of cases." Id. at 575-76.
The Harman holdings are reflected in the present circuit
and magistrate court Criminal Rule 3, adopted effective April 1,
The complaint is a written statement of the essential facts constituting the offense charged. The complaint shall be presented to and sworn or affirmed before a magistrate in the county where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a prosecuting attorney or a law enforcement officer showing reason to have reliable information and belief. If from the facts stated in the complaint the magistrate finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding.
Footnote: 4The present Rule 3 is essentially the same in these respects. See footnote 3 above.