Adkins v. Commonwealth

• Decision Date: 10 June 1940
• Docket Number: Record No. 2261.
• Citation: 175 Va. 590
• Parties: OREN WELDON ADKINS v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 590

175 Va. 590

OREN WELDON ADKINS v. COMMONWEALTH.

Record No. 2261.

Supreme Court of Virginia, Richmond.

June 10, 1940.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. BIGAMY — Indictment — Question of Law Presented by Demurrer — Case at Bar. — In the instant case, a prosecution for bigamy, the first indictment against accused, an unmarried man, charged him in one count with the crime of bigamy and in the other with aiding and abetting in the commission of the crime of bigamy. Accused demurred to this first indictment on the ground that, being an unmarried person, he was not included within the statute defining bigamy and that as a matter of law an unmarried man could not be an accessory to the crime of bigamy. The trial court sustained the demurrer.

Held: That the demurrer presented a question of law which only the court could decide.

2. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Discharge upon Demurrer to Indictment — Case at Bar. — In the instant case, a prosecution for bigamy, accused, an unmarried man, was first indicted and charged with the commission of the crime of bigamy and with counselling, aiding and abetting and assisting in the commission of the crime of bigamy. Accused demurred to this first indictment on the ground that as a matter of law an unmarried man was not included within the language of the statute defining bigamy and could not be an accessory to the crime of bigamy. The trial court sustained the demurrer and ordered that "the defendant be discharged from said indictment and may go thereof without day." Following the entry of this order, accused was again arraigned upon a second indictment charging him with aiding and abetting in the commission of the crime of bigamy, upon which arraignment he filed a plea of autrefois acquit. It was contended that it was not established that accused had been discharged from the first indictment because the court ruled that the acts with which he was charged did not constitute a crime.

Held: That the contention was without merit, since the order sustaining the demurrer did not contain any language of an ambiguous nature, and since the order discharging accused "without day" was an ultimate decision upon a question of law.

3. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — As Ordinarily Understood in Legal Parlance. — Jeopardy, as ordinarily understood in legal parlance, refers to the danger of conviction and punishment which a defendant incurs in a criminal case where a jury has been empaneled and sworn.

4. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Former Trial by Court or Jury. — The spirit and purpose of the immunity intended to be secured by the doctrine of double jeopardy is violated whenever a defendant in any criminal case has been formerly tried by competent authority — whether court or jury — and discharged upon a defense constituting a bar to the proceeding, whether that defense is rested upon the law or the facts.

5. AUTREFOIS, ACQUIT AND CONVICT — Doctrine — Rule Same in Criminal and Civil Cases. — A fact once determined by a court of competent jurisdiction in a criminal proceeding cannot again be litigated between the same parties unless a different rule applies in criminal proceedings from that which obtains in civil proceedings, but it is well settled that the rule is the same in both classes of cases.

6. CRIMINAL LAW — Fair Trial — Trial Contrary to Law. — However conclusively the evidence shows the guilt of the accused, when it is admitted that he has been tried contrary to law, then to hold that he has had a fair trial under the law is a non sequitur.

7. APPEAL AND ERROR — Criminal Law — Chief Concern of Appellate Court. — The chief concern of the appellate court is not to sit as a jury and determine the guilt or innocence of an accused, but is to ascertain whether or not an accused has been accorded a fair and impartial trial according to law.

8. ACCOMPLICES AND ACCESSORIES — Common-Law Rule — Application to Statutory Offenses. — At common law, criminal liability was not limited to those persons who actually committed a criminal deed, and all other persons who assisted in the commission of the crime, or counselled or procured another to commit the offense, or aided or assisted the one who had committed an offense, were punishable as parties thereto, and in general these principles apply to statutory offenses.

9. CRIMINAL LAW — Construction of Criminal Statutes — Statutes Creating Offenses Carry Incidents of Common-Law Offenses. — Statutes creating offenses not punishable at common law carry with them the incidents of common-law offenses in the absence of compelling reason to the contrary.

10. STATUTES — Construction — According to Reason of Common Law. — The best construction of a statute is to construe it as near to the reason of the common law as may be, and by the course which that observes in cases of its own.

11. ACCOMPLICES AND ACCESSORIES — Principals in Second Degree — Aiders in Commission of Felony Created by Statute. — When a statute creates a new felony, whether out of what was before innocent, or was a misdemeanor, those who are aiding one who personally commits it are principals.

12. ACCOMPLICES AND ACCESSORIES — Principals in Second Degree — Incapacity to Commit Offense as Principal in First Degree. — The mere fact of incapacity to commit an offense as a principal in the first degree does not prevent one who aids and abets the principal offender from being held criminally liable as a principal in the second degree.

13. ACCOMPLICES AND ACCESSORIES — Statutory Offenses — Failure to Provide for Guilt of Accomplices. — When the legislature creates a statutory offense and fails to provide for the guilt of an accomplice, the omission from the statute is not generally considered to indicate an intent to exclude such parties from criminal responsibility.

14. BIGAMY — Accomplices and Accessories — Unmarried Person Who Knowingly Marries Another Already Married. — An unmarried person who marries another, knowing that the latter is already married, may be convicted of aiding and abetting the commission of bigamy by the latter, even though the statute punishing bigamy, section 4538 of the Code of 1936, does not in terms make the competent party to the bigamous marriage punishable.

Error to a judgment of the Circuit Court of Giles county. Hon. A. C. Buchanan, judge presiding.

The opinion states the case.

W. B. Snidow, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Walter E. Rogers, Special Assistant, for the Commonwealth.

CAMPBELL, C.J., delivered the opinion of the court.

Oren Weldon Adkins was arraigned, tried and convicted upon an indictment charging him with aiding and abetting Pearl Copeland Miller in the commission of the crime of bigamy. He was sentenced in conformity with the verdict of the jury to serve three years in the penitentiary $tThe facts are undisputed. The Commonwealth proved that on the 3rd day of September, 1938, Pearl Copeland Miller was a married woman having a living husband in Monroe county, West Virginia, from whom she had not been divorced, all of which the defendant, Adkins, well knew; that on the said 3rd day of September, 1938, she left her husband's home in Monroe county, West Virginia, and came to Pearisburg, Giles county, Virginia, with the defendant, and there she and the defendant procured a marriage license from the clerk of the Circuit Court of Giles county, Virginia, and that she and Adkins thereupon sought a minister of the Gospel, and were by him married in Giles county, under and pursuant to the license so obtained; that the defendant was a single man and had never been married; that immediately after the marriage ceremony Pearl Copeland Miller and the defendant left Giles county to return to Monroe county, West Virginia, and without cohabiting in Giles county; that they did, on their way back from Giles county, and following the marriage ceremony, cohabit in Monroe county, West Virginia, where they were each subsequently arrested and returned to Giles county. The defendant introduced no evidence upon his trial.

There were two indictments returned against the accused during the progress of the prosecution. He was first jointly indicted with Pearl Miller and to that indictment she entered a plea of guilty and was sentenced to the penitentiary. This indictment contained two counts which read:

"The grand jurors of the Commonwealth of Virginia, in and for the body of the county of Giles, impanelled and sworn at the term hereof commencing on the 13th day of December, 1938, and now attending upon the said court, upon their oath present that Pearl Copeland Miller and Oren Welden Atkins in the said county on the . . . day of September, 1938, did unlawfully and feloniously marry each other, while she the said Pearl Copeland Miller was lawfully married to another, and during the life of the former husband of the said Pearl Copeland Miller, against the peace and dignity of the Commonwealth of Virginia.

"And the jurors aforesaid upon their oaths aforesaid do further present that the said Oren Welden Atkins, on the day and year aforesaid in the county aforesaid unlawfully and feloniously was present counselling, aiding, abetting and assisting the said Pearl Copeland Miller, the felony aforesaid, to do and commit against the peace and dignity of the Commonwealth of Virginia."

Accused, upon his arraignment, demurred to the indictment upon several grounds. As we comprehend the questions raised by the demurrer, the following grounds are mainly relied upon by counsel for accused:

"The first count is bad as to him for the reason that it charges him as principal in the first degree; that is to say, he is therein charged with the crime of bigamy, when he is not included within the language of the statute, being an unmarried person.

"The first count is further...