West Virginia Law Review

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In State ex rel. Dowdy v. Robinson the West Virginia Supreme Court of Appeals substantially altered the double jeopardy law of the state. Dowdy was indicted for breaking and entering a nightclub. The indictment specified the building's location as 220-22nd Street in Huntington, West Virginia. The proof presented at trial indicated that the nightclub was located at 200-22nd Street. The trial court granted a motion for a directed verdict of not guilty on the ground that the variance was fatal to the prosecution's case. Dowdy was subsequently reindicted for the breaking and entering, the only difference between the second indictment from the first being the address correction. The defense filed a writ of prohibition, contending that a retrial would violate Dowdy's rights under the United States and West Virginia Constitutions not to be placed in double jeopardy. The West Virginia Supreme Court of Appeals agreed. In so ruling it adopted both a new rule on the double jeopardy consequences of an acquittal verdict and an additional test for determining what constitutes the "same offense" for double jeopardy purposes. The court ruled that every acquittal is a complete and absolute bar to any further prosecution for the "same offense" no matter how erroneous the verdict may be. It further held that "same offense," as used in the West Virginia Constitution, shall be defined by either the “same evidence" test or the "same transaction" test, whichever provides the defendant with greater protection against multiple prosecutions. The Dowdy case has led to considerable confusion.



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