Barker v. Commonwealth
| Decision Date | 01 January 1817 |
| Citation | 4 Va. 122 |
| Parties | Joseph Barker v. The Commonwealth |
| Court | Virginia Supreme Court |
[Syllabus Material] [Syllabus Material]
This was an application for a Writ of Error to a judgment of the Superior Court of Henry. The petitioner was indicted under the Statute [a] for stealing bank notes. He was convicted, and moved in arrest of judgment: 1. Because the offence was not charged to have been committed feloniously. 2. Because the bank notes stolen are not charged to have been the property of any one. The Superior Court over-ruled the motion, and rendered judgment on the verdict, to reverse which, this Writ was applied for.
The Writ was awarded at the last June Term, returnable to this Court, with an endorsement on it that it was to operate as a Supersedeas, and with further directions, that if the Writ should be served on the Officer before he should reach the Penitentiary with the convict, that he should be re-conveyed to the Jail of Henry county, there to remain till the further order of this Court. It so happened, however, that the convict was lodged in the Penitentiary before the Writ was served on the Sheriff. At this Term, a majority of the Court having decided that the judgment should be reversed, a Habeas Corpus was directed to the Superintendent of that Institution, by virtue of which, the prisoner was brought before the Court; and Judge White pronounced the following opinion and judgment:
After verdict, the plaintiff in error moved to arrest the judgment and assigned for cause: 1. That the taking and carrying away of the notes, is not stated to have been felonious. 2. That the notes are not stated to be the property of any person. The Superior Court over-ruled the motion in arrest, and entered a judgment on the verdict; to which judgment, the plaintiff in error sued out from this Court his Writ of Error.
In support of the judgment on the first point, the Attorney General said, that the stealing bank notes was not felony at the Common Law; that the Statute does not declare in terms that it shall be felony, [b] but merely declares that any person guilty thereof shall be punished by a certain imprisonment in the Jail and Penitentiary-house; that it cannot be made a felony by construction, because felony is a Common Law term and forfeiture of goods and chattels at the least, is essential in that offence; nay, it is the very ingredient from which the term arises.
It is readily admitted, that the term felony, is derived from the source from which the Attorney General deduces it: and that forfeiture of lands or goods, or both, is, by the Common Law essential to the offence so termed; insomuch that if a new crime, either in England or in Virginia, before the year 1789, was created by Statute, and declared thereby to be a felony, forfeiture would immediately attach thereto: and, moreover, the punishment would also attach thereto, not because the word felony, in its original and " rude idea and definition," (to use Judge Blackstone's own words, vol. 4, p. 97,) had any reference to capital punishments, but because all felonies, with a few exceptions only, (which exceptions serve to prove the rule,) were by the Common Law so punished. Many Statutes creating offences, theretofore unknown, simply declare that the offences so created, shall be felony, or that the offenders against those Statutes shall suffer as felons, without saying, what in particular shall be their punishment: For instance, the Act " against embezzling Records," 1 Rev. Code of 1792, p. 45; the Act " to prevent malicious shooting," Ibid, 178; the Act " concerning stealing tobacco on the highway," Ibid, 280; and many others. Yet no Court, before or since the Penitentiary Law went into operation, ever doubted what judgment it ought to render against persons convicted of those offences. And why? Because, from the long and general application of capital punishment to those offences, (except as before excepted,) the crime and the punishment had, in contemplation of Law, become so blended, that the designation of one virtually included the other. Or, to use Blackstone's language, Ibid, p. 98, " the idea of felony is indeed so generally connected with capital punishment, that we find it hard to separate them: and to this usage the interpretations of the Law now conform; and if, therefore, a Statute makes any new offence felony, the Law implies, that it shall be punished with death, by hanging, as well as with forfeiture." Thus the word felony originally signified forfeiture, but by long use, it came to signify those crimes that were punished by forfeiture. (Ibid, p. 97.) And by the like long use in the construction of the Statutory Laws, it acquired a new attribute. In all Statutes it denoted an offence to be punished with forfeiture and death. So, that in all Statutory offences, the word felony included ex vi termini the punishment of death as well as forfeiture. With this attribute it remained clothed in Virginia, as well as in England, till the year 1789. In that year it was enacted by the Legislature, that attainder of any treason, murder or felony, should in no case thereafter work any forfeiture of property to the Commonwealth: thus disrobing the technical word felony of one of its attributes, of...
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