Stalnaker v. State of WV

       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                         ____________

                           No. 19946

                               ^^^^^

                         ____________

                    GERALD "RED" STALNAKER,

                           Appellant

                              v.

                    STATE OF WEST VIRGINIA,

                           Appellee

  ___________________________________________________________

         Appeal from the Circuit Court of Lewis County

               Honorable Thomas H. Keadle, Judge

                 Misdemeanor Case No. 90-M-25

                           REVERSED

  ___________________________________________________________

                  Submitted: October 1, 1991

                   Filed:  December 6, 1991

James C. West, Jr., Esq.

West & Jones

Clarksburg, West Virginia

Attorney for the Appellant

Mario J. Palumbo, Esq.

Attorney General

Teresa A. Tarr, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Appellee

The Opinion of the Court was delivered PER CURIAM.
                     SYLLABUS BY THE COURT

              1."In West Virginia, the term 'residence' is

synonymous with the term 'domicile' for election law purposes."

Syllabus Point 7, White v. Manchin, 173 W. Va. 526, 318 S.E.2d 470

(1984).

              2."'Domicile is a combination of residence (or

presence) and an intention of remaining.  If domicile has once

existed, mere temporary absence will not destroy it, however long

continued.'  Syl. pt. 2, Lotz v. Atamaniuk, 304 S.E.2d 20 (W.Va.

1983)."  Syllabus Point 8, White v. Manchin, 173 W. Va. 526, 318

S.E.2d 470 (1984).

              3.  "'A change in residence for convenience in working

conditions does not, without more, indicate a change in domicile.'

Syl. pt. 3, Shaw v. Shaw, 155 W. Va. 712, 187 S.E.2d 124 (1972)."

Syllabus Point 10, White v. Manchin, 173 W. Va. 526, 318 S.E.2d 470

(1984).
Per Curiam:

              Gerald "Red" Stalnaker appeals a jury verdict in the

Circuit Court of Lewis County, which found him guilty of false

swearing on his certificate of candidacy for commissioner of Lewis

County.  On appeal, Mr. Stalnaker maintains that the jury verdict

should be set aside because the evidence was insufficient.  Based

on a careful review of the evidence presented, we agree with Mr.

Stalnaker and reverse the order of the circuit court.

              Mr. Stalnaker, a commissioner of Lewis County, lived at

Box 5-H, Weston, Hacker's Creek District from approximately June

1984 until his trailer was destroyed by a tornado in June 1989.

It is undisputed that between 1984 and 1989, Mr. Stalnaker and his

wife used and identified the trailer as their residence.  Mr.

Stalnaker's trailer was on the back of a commercial lot where

several of his businesses, including a car wash, were located.  Mr.

Stalnaker also owned a farm that was located in a different

election district, namely the Collins Settlement District.  After

the trailer was destroyed, Mr. Stalnaker and his wife moved to

their farm while Mr. Stalnaker converted part of the car wash into

an apartment and lived there for a period of about 3 months.  Mr.

Stalnaker and his wife then occupied the apartment to the same

extent that they had occupied their trailer.

              Mr. Stalnaker's farm was purchased in 1984 and after

building a house, Mr. Stalnaker and his wife spent some time at the

farm.  In 1985 Mr. Stalnaker applied for and received a Homestead

Exemption for his farm.  Since 1985, Mr. Stalnaker has continued

to receive the Homestead Exemption for his farm.  

              On January 26, 1990, Mr. Stalnaker filed his certificate

of candidacy for reelection to the Lewis County Commission and

listed Route 3, Box 5 H, Hacker's Creek District, Weston (his

apartment) as his residence.  The State, alleging that when Mr.

Stalnaker filed for reelection, his residence was his farm and not

his apartment, indicted Mr. Stalnaker for false swearing on his

certificate of candidacy in violation of W. Va. Code, 3-5-7

[1990].

                                  At trial the State introduced evidence of Mr. Stalnaker's

Homestead Exemption and utility bills for both his apartment and

farm.  In addition, Mrs. Stalnaker testified that she spent a

substantial amount of time at the farm.  After the jury found Mr.

Stalnaker guilty of false swearing and the circuit court declined

to set aside the verdict, Mr. Stalnaker appealed to this Court.  

                              I.

              On appeal, the question is whether the evidence is

sufficient to show that Mr. Stalnaker falsely swore on his

certificate of candidacy that his residence was his apartment in

the Hacker's Creek District.  

              "In West Virginia, the term 'residence' is synonymous

with the term 'domicile' for election law purposes."  Syllabus

Point 7, White v. Manchin, 173 W. Va. 526, 318 S.E.2d 470 (1984).

See also, Sturm v. Henderson, ___ W. Va. ___, 342 S.E.2d 287

(1986); Irons v. Fry, 129 W. Va. 284, 290, 40 S.E.2d 340, 343

(1946).  

              In White, we said:

           Domicile is a combination of residence (or

         presence) and an intention of remaining.  If

         domicile has once existed, mere temporary

         absence will not destroy it, however long

         continued.

Syllabus Point 8, White supra.  Domicile, then, consists of two

elements, residence and an intention of remaining.

              In the present case, the State presented evidence of only

one element, residence or presence, and that evidence showed that

Mr. Stalnaker has two residences, his apartment and his farm.  Mr.

Stalnaker's apartment is located next to his commercial

enterprises, which include an electrical business, a rental

building and a furniture store, which was formerly a car wash.  The

utilities for the apartment are included with Mr. Stalnaker's

businesses and his utility usage was below the average for

residential customers.  

              Mr. Stalnaker's farm is classified as residential

property and since 1985, Mr. Stalnaker has received a Homestead

Exemption for the farm.  Monongahela Power Company, the only

utility to provide information on the farm, reported that the farm,

a residential account, had consumed electricity at a rate above the

industry's average between June 1988 and July 1990.

              Both the apartment and the farm have private living

quarters, including a kitchen and bath.  The farm has more land and

storage facilities.  All of Mr. Stalnaker's mail is delivered to

the apartment's address.  Mr. Stalnaker's operator's license, car

registration, voter registration, indeed even the Homestead

Exemption, list the apartment's address.

              Mrs. Stalnaker testified that although she spends a

substantial portion of her time at the farm, she spends about three

nights a week at the apartment.  The evidence also showed that

although Mr. Stalnaker is usually at his apartment during the day,

he travels to his farm most evenings.  Most of the witnesses

testified that they meet with Mr. Stalnaker at his apartment during

the day.  

              Based only on this evidence, the State maintains that

under the election law, Mr. Stalnaker's farm was his residence.

However, the State failed to present any evidence concerning the

second element of domicile, namely the intention of remaining.

              It is undisputed that before Mr. Stalnaker's trailer was

destroyed in 1989, his domicile was his trailer.  During the

construction of the apartment, which replaced the trailer at the

same location,  Mr. Stalnaker and his wife lived at the farm.

However, once the apartment was completed, Mr. Stalnaker and his

wife returned to live, at least part of the time, at the apartment.

At most, the State's evidence establishes that Mr. Stalnaker has

two residences; however, although a person can live or reside in

more than one place, a person can have only one domicile.

              In White, supra, we discussed a similar circumstance

involving a state senatorial candidate, Charles M. Polan, Jr., who

had "sleeping quarters" in the district where he sought election

and an apartment outside the district. White, id. at ___, 318

S.E.2d 484-85.  In White, we first examined the physical character

of each residence and then examined the record to see if there was

an intention to change the domicile. In Syllabus Point 4, Shaw v.

Shaw, 155 W. Va. 712, 187 S.E.2d 124 (1972), we said:

           The important facts in determining the

         domicile of a person who has more than one

         residence are the physical character of each,

         the time spent and the things done in each

         place, and whether or not there is an

         intention to return to the original domicile.

In accord, Syllabus Point 9, White, supra.  We also noted that it

is a well established rule that, "[a] domicile once acquired is

presumed to continue until it is shown to have been changed."

White, id. at ___, 318 S.E.2d at 486 (quoting Mitchell v. United

States, 88 U.S. (21 Wall. 350) 350, 353 (1874).

              The intention to change a domicile, "which requires an

intent not to return to the old domicile, is to be inferred from

the facts and circumstances, not from self-serving

representations."  White, id. at ____, 318 S.E.2d at 486.  The

party alleging a change of domicile has the burden of proof.  In

White, we found that the candidate did not show an intention to

abandon his former domicile, a fully furnished suite for "sleeping

quarters."  

              In the present case,  it is undisputed that Mr.

Stalnaker's domicile was his trailer until a tornado destroyed it

in 1989.  After Mr. Stalnaker constructed an apartment on the

trailer's site, he returned to live there, at least part of the

time.  In Syllabus Point 10, White supra, we said:

           "A change in residence for convenience in

         working conditions does not, without more,

         indicate a change in domicile."  Syl. pt. 3,

         Shaw v. Shaw, 155 W. Va. 712, 187 S.E.2d 124

         (1972).

Mr. Stalnaker's change in residence for convenience while he was

constructing a replacement for his trailer, does not, without more,

indicate a change in domicile.  Mr. Stalnaker's construction of an

apartment and his presence in the apartment at least part of the

time, show his intention of returning to his original domicile.  

              We reiterate in this case that physical residency is a

condition for election as a county commissioner along with numerous

other local offices including the House of Delegates, the State

Senate (White, supra), Board of Education (Sturm, supra), etc.

Therefore, for these local offices the residency requirement must

be strictly construed.  However, "a different domicile standard

applies to . . . officials" holding statewide or federal offices.

White, supra at ___, 318 S.E.2d at 482, n. 5.  For such federal or

statewide officials, current residency is not a condition for

election.  Indeed, service of process for a member of the Board of

Public Works, which includes the governor, secretary of state,

auditor, superintendent of free schools [state superintendent of

schools], treasurer, attorney general and commissioner of

agriculture (W. Va. Code, 5-4-1 [1923]), is proper in Kanawha

County because it is the officials' "usual place of abode."  W. Va.

Code, 56-2-1 [1923].  However, unless federal or statewide elected

officials change their domicile as shown by changing their voter

registration, these officials are entitled to file for office from

any county wherein they have had a residency before attending to

their official duties in Washington, D.C. or Charleston.  See

White, supra at ___, 318 S.E.2d at 482, n. 5.

              Because the State failed to present any evidence of Mr.

Stalnaker's intent to change his domicile, we find that the State

failed to establish that the farm was Mr. Stalnaker's domicile.

Therefore, the State failed to prove that Mr. Stalnaker falsely

swore on his certificate of candidacy.

              For the above stated reasons, the decision of the Circuit

Court of Lewis County is reversed.

                                                                                                                                                                                                                                                              

                   Reversed.

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topic no 11 Topic Name : 1991 Fall

current date  Mon Jul  8 09:36:03 1996

Entry # : 735  prepared Sep  2 14:15:33 1993

Author : Admin

Subject :State of WV v Gerald "Red" Stalnaker

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