Anthony v. Commonwealth

• Decision Date: 10 March 1892
• Citation: 88 Va. 847,14 S.E. 834
• Parties: Anthony v. Commonwealth.
• Court: Virginia Supreme Court

14 S.E. 834

88 Va. 847

Anthony

v.Commonwealth.

(Supreme Court of Appeals of Virginia.

March 10, 1892.

¹

Larceny—Misjoinder op Counts—Conspiracy-Obtaining Goods under False Pretenses — Certificate of Evidence.

1. An indictment for larceny against Joint defendants, which charges them with conspiring together for the purpose of committing larceny, and then charges the actual commission of the larceny by them, is not objectionable, as joining a count for larceny and a count for conspiracy in the same indictment.

2. Under the Virginia statute making the offense of obtaining goods under false pretenses larceny, a count for obtaining the goods under false pretenses may be joined with other counts in an indictment for larceny.

3. The supreme court will not undertake to determine the propriety of rulings of the trial court, in a criminal case, on the admission of evidence, the giving or refusal of instructions, the exhibition of articles to the jury, and the arguments of counsel, in the absence of a certificate of the facts and of the evidence.

Error to Shenandoah county court; E. D. Newman, Judge.

Indictment against James Anthony and others for larceny. Defendant Anthony wasconvicted, and brings error. Affirmed.

James H. Williams, Holmes Conrad, and Wm. R. Alexander, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lacy, J. This is a writ of error to a judgment of the county court of Shenandoah rendered on the 15th day of February, 1891, and to the action of the circuit court of said county in refusing a writ of error to the said judgment. The plaintiff in error was indicted in the said county court for larceny jointly with two other persons. The indictment was as follows: The first count charged that John Myers, James Anthony, and William Weed, alias Henry Johnson, on the 8th day of November, 1890, in the said county, divers notes of the national currency of the United States, of unknown denomination and numbers, but in the whole amounting to $390, and of the value of $390, the property of one Philip Kibler, feloniously did steal, take, and carry away, against the peace and dignity of the commonwealth of Virginia. The second count, like the first, is for the larceny of the same goods against the same parties, wherein is set forth with more detail how they did jointly steal, take, and carry away the said notes; and it is set forth that these same parties, on the same day, in the said county, wickedly, unjustly, and feloniously devising and intendiug one Philip Kiblerto defraud of his money, did then and there fraudulently and feloniously conspire, combine, confederate, and agree together, among themselves, to feloniously take, steal, and carry away the money, etc.; and that in pursuance thereof, and in accordance with the said conspiracy, combination, confederacy, etc., did steal, etc., —setting forth the same larceny of the same goods as in the first count, and in the same way. The third count is like the second, except that it is a count for obtaining the same goods by false pretenses. The accused parties named in the said indictment moved to quash the said indictment, and demurred thereto, and, these motions being overruled, they severally pleaded not guilty, and elected to sever on the trial, and the plaintiff in error was tried first, and convicted, and sentenced to two years in the penitentiary. The defendant, having excepted to various rulings of the county court, applied to the circuit court of said county for a writ of error to the said judgment against him, which being refused, as already stated, he applied for a writ of error to this court, which was granted by one of the judges.

The first question raised here by counsel for the plaintiff in error is the refusal of the court to quash the indictment. It is stated in the transcript that the defendant excepted to this action of the court, by the clerk, but no bill of exceptions is filed in the record. The ground for the motion to quash and the demurrer is stated to be that "it charges three distinct offenses, and that one of the counts did not charge any offense." The indictment does not charge three distinct offenses. The first count is a count for larceny jointly against three persons, and the second is a count for larceny against the same parties, committed jointly, in accordance with a previous agreement to that end. There is a good deal by way of inducement describing this agreement to steal, and the theft is charged distinctly to have been made in pursuance thereof. This is a count for the same larceny, somewhat differently stated. The third count is a count for obtaining goods by false pretenses, fashioned after the manner of the second count. Obtaining money or other property under false pretenses, with intent to defraud, is made larceny by our statute, if the property so obtained be the subject of larceny, and is punished In the same way. So there was no misjoinder of counts, and the indictment, and each count thereof, is good. When the whole of the second count is considered together, it is...