Commonwealth v. Adcock

Citation49 Va. 661
PartiesCOMMONWEALTH v. ADCOCK.
Decision Date17 December 1851
CourtSupreme Court of Virginia

1. A prisoner is remanded by the examining Court to be tried for embezzling the goods of W; he may thereupon be indicted for embezzling the goods of A; the embezzlement being of the same goods for which he was tried by the examining Court.

2. A prisoner is indicted for embezzling the goods of W, and at the fifth term after he was examined for the offence, he is tried and convicted; but the verdict is set aside for a variance between the allegation and the proof, as to the ownership of the goods; and the case is continued. At the next term of the Court the attorney for the Commonwealth enters a nolle prosequi upon the indictment; and the prisoner is indicted again for the same offence; the indictment in the first count being the same as in the former indictment, and another count charging the goods embezzled to be the goods of A. Upon his arraignment he moves the Court to discharge him from the offence, on the ground that three regular terms of the Court had been held since he was examined and remanded for trial without his being indicted. The attorney for the Commonwealth opposes the motion and offers the record of the proceedings of the Circuit court upon the first indictment, to shew that he had been indicted tried and convicted; which was objected to by the prisoner. HELD:

1st. The record is competent, and the only comptent, evidence upon the question.

2d. The second indictment being for the same act of embezzling as the first, and the prisoner having been indicted, tried and convicted in time, and the verdict set aside for the variance, the second indictment was proper and in time; and the prisoner is not entitled to be discharged.

3. The exceptions or excuses for failure to try the prisoner enumerated in the statute, are not intended to exclude others of a similar nature, or in pari ratione; but only that if the Commonwealth was in default for three terms without any of the excuses for the failure enumerated in the statute, or such like excuses fairly implicable by the Courts from the reason and spirit of the law, the prisoner should be entitled to his discharge.

4. Though an offence committed before the Code of 1849 went into operation, must, so far as the question of guilt, degree of crime, quantum of punishment and rules of evidence are concerned, be governed by the law in force at the time the offence was committed, yet upon the question of the prisoner's right to be discharged from the failure to try him, arising after the Code went into operation, it must be governed by the law in the Code.[a1]

The case is fully stated in the opinion of the Court delivered by Judge Thompson.

The Attorney General and Young, for the Commonwealth.

Robert G. Scott and Irving, for the prisoner.

OPINION

THOMPSON, J.

The accused, the captain of a canal boat and carrier for hire on the James river canal, was on the 7th of December 1848 committed by the mayor of the city of Richmond, upon a charge of feloniously embezzling and fraudulently converting to his own use, a box of merchandise, delivered to him for transportation to Buchanan, the property of Word, Ferguson & Barksdale, merchants of the city of Richmond. He was examined and remanded for further trial by the Hustings court on the 18th of January 1849, and being admitted to bail, he entered into a recognizance with approved security to appear at the next term of the Circuit Superior court for the county of Henrico and city of Richmond: the witnesses for the Commonwealth were recognized to appear at the same term to give evidence in behalf of the Commonweath. The accused failed to appear at the first of the term, his default was recorded, his recognizance estreated, and a scire facias awarded against him and his bail. At a subsequent day of the term he made his appearance; whereupon on his motion the orders of default and award of scire facias were set aside, and he was released from the breach of his recognizance: In the meantime however the witnesses for the Commonwealth, the two recognized, Ferguson and Blair, had appeared and been recognized to the next term, and the cause virtually continued: and then the prisoner was again let to bail and recognized to appear at the next term. Neither at this term nor at the first was any indictment found by the grand jury. Whether the failure to send the indictment to the grand jury at the first term was owing to the failure of the accused to appear before the Commonwealth's witnesses had been adjourned over and recognized to appear at the next term and the cause virtually continued; or whether the failure to indict at both the first and second terms was owing to the absence of the witness Roberts, the other two Ferguson and Blair, upon whose evidence the bill was eventually found, being present on both occasions, the record does not inform us; and therefore we can only conjecture. If the non-appearance of the accused at the first term was the cause of the failure then either in whole or in part, the presumption is that the cause of the second failure was the absence of the witness Roberts. At the third term, April 1850, the indictment was found; and then and at the fourth term, November 1850, the cause was continued on motion of the prisoner. At the fifth term, April 1851, the indictment which contained but one count and laid the goods charged to be embezzled as the property of Word, Ferguson & Barksdale, came on for trial, was tried, and the jury who tried it returned a verdict of guilty, and assessed the term of imprisonment in the penitentiary at one year. The prisoner moved for a new trial, which was granted by the Court upon the ground of a variance between the allegata et probata relative to the ownership or property in the goods, which were the subject of the embezzlement. The case then necessarily stood over to the November term 1851, for the new trial. At that term the attorney for the Commonwealth, as it was his duty to do, to avoid a second failure upon the ground of variance in the event of the same evidence being adduced on the new trial, and the opinion of the Court remaining the same upon the question of ownership, to wit, that the property of the goods was in the consignees, the Messrs. Ayres of Buchanan, and not the consignors, Word, Ferguson & Barksdale, asked and obtained leave of the Court to enter a nolle prosequi as to the first indictment, and to send up a new bill; which was found by the grand jury then in session: the prisoner, upon the motion of the attorney for the Commonwealth, being detained in custody to answer the new indictment based upon his examination by the Hustings court for the same offence, varying in nothing but in the incident of ownership or property in the goods. This new indictment contains three counts, all charging the same corpus delicti. The first embraces the old indictment in totidem verbis, laying the property of the goods in Word, Ferguson & Barksdale; the second alleges their ownership in R. M. & Francis Ayres; and the third alleges delivery by Word, Ferguson & Co. of the goods of R. M. & Francis Ayres, to the accused to be carried and delivered to them at Buchanan: In short, the new indictment is the old one with two additional or superadded counts. Upon his arraignment upon this new indictment the prisoner tendered a plea in abatement, setting forth that he had not been regularly and legally examined for the offence therein charged. To his plea the attorney for the Commonwealth replied that he had been regularly and legally examined, and remanded by the Hustings court for the offence whereof he was indicted; and vouched the record and proceedings of the examining Court. To this replication the prisoner demurred ore tenus; the attorney for the Commonwealth in like manner joined in the demurrer; and the Court overruled the demurrer: being of opinion that the prisoner had been regularly and legally examined for the offence charged. Whereupon he moved the Court to discharge him from the offence aforesaid, on the ground that three regular criminal terms of the Court had been held since he was examined and remanded for trial before the same, for the said offence, without being indicted for the same: and in support of his motion he vouched the record of the examining Court, shewing that he was examined and remanded for the offence on the 18th of January 1849, and shewing by the record of the Circuit Superior court that more than three regular criminal terms had been held since his examination, to wit, on the 3d day of May 1849, 13th of November 1849, 29th of April 1850, 8th day of November 1850, and 28th of April 1851; and alleging that at neither of these terms had he been indicted for the offence aforesaid. The attorney for the Commonwealth opposed the prisoner's motion for his discharge; and for the purpose of answering and negativing his allegation of a failure to indict in three terms, offered to introduce the record of the proceedings of the Circuit court upon the first indictment, shewing or purporting to shew, that the prisoner had not only been indicted but tried upon the indictment in due time, and found guilty by the verdict of a jury; and applied for and obtained a new trial of the Court upon the ground of variance between the allegations and the proofs. To the introduction of this evidence the prisoner objected; but his objection was overruled, the evidence received and considered, and the prisoner's motion for his discharge overruled. Afterwards, however, the Court upon the motion of the prisoner, and by his consent and with the consent of the attorney for the Commonwealth, waived its decision upon the motion for a discharge, and the prisoner's objection to the evidence introduced by...

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