Benton v. Commonwealth.1

• Decision Date: 28 March 1895
• Citation: 91 Va. 782,21 S.E. 495
• Parties: BENTON . v. COMMONWEALTH.1
• Court: Virginia Supreme Court

21 S.E. 495

91 Va. 782

BENTON .

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

March 28, 1895.

Criminal Law—New Trial—Wrongful Continuance—Former Jeopardy—Waiver by Application for New Trial—Housebreaking—Larceny.

1. Where the supreme court grants a prisoner a new trial on account of a failure to give him a "speedy trial" in the court below, due to the wrongful continuance of the case at a certain term, he is not entitled to a discharge, but only to the new trial given him.

2. The first count of the indictment charged housebreaking with intent to commit larceny; the second, entering a house without breaking, with the same intent. On the first trial defendant was found guilty as charged in the indictment; on a second trial he was found guilty of grand larceny. It was claimed that as he was, on the second trial, found guilty of grand larceny alone, he was acquitted of housebreaking, and, the verdict on the first trial being general, and silent as to the larceny charged, it was a verdict for housebreaking with intent to commit larceny only, and in effect an acquittal of the charge of larceny. Held, that a plea in accordance with the above claim was bad, as by applying for a new trial he waived his former jeopardy.

3. Though housebreaking with intent to commit, larceny and grand larceny may be charged in one indictment, the accused may be found guilty of either or both offenses, but only one penalty can be imposed, unless there is a separate count for each.

4. Code 1887, § 4040, provides that "if the verdict be set aside and a new trial granted theaccused, he shall not he tried for any higher offense than that of which he was convicted on the last trial." Held, that on the new trial the accused is liable to be convicted of any offense charged in the indictment for which there is no severer punishment than the offense of which he was convicted.

5. It is permissible to charge in different counts of the same indictment an entering of a house without breaking and also by breaking.

6. A meathouse is a storehouse, within Code 1887, §§ 3705, 3706, forbidding the entering a storehouse with intent to commit larceny.

7. Where the record shows, "On motion of the defendant rules were ordered against" certain persons, it will be inferred that the prisoner was personally present in court.

Error to circuit court, Fauquier county.

D. W. Benton was convicted of entering a house with intent to commit larceny, and brings error. Affirmed.

Garrett & Garrett, for plaintiff in error.

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

RIELY, J. The plaintiff in error, D. W. Benton, was jointly indicted with others, in the county court of Loudoun county, at its August term, 1892, under section 3706 of the Code, for housebreaking in the nighttime with intent to commit larceny. He was convicted upon the indictment, and upon a writ of error to this court a new trial was awarded him on the ground that improper testimony had been admitted against him by the trial court Benton v. Com., 89 Va. 570, 16 S. E. 725. He was again convicted, and a new trial was again granted him by this court, because the case had been erroneously continued at one term for the commonwealth against his protest Id., 18 S. E. 282. When the case went back the second time for a new trial it was removed to the county court of Fauquier county, in which, at its September term, 1894, a general verdict of guilty was found against him upon the indictment, and his punishment fixed by the jury at confinement in the penitentiary for three years and six months. Judgment was entered upon the verdict, and upon a writ of error to the circuit court the same was affirmed. Upon the calling of the case at the May term, 1894, of the said court, the prisoner moved the court to dismiss the prosecution against him, and discharge him from custody, upon the ground that this court had decided that by the erroneous continuance by the county court of his case for the commonwealth at its February term, 1893, he had been denied the "speedy trial" guarantied to him by the constitution, and for that reason had reversed the judgment entered against him at the following March term; and that, therefore, he could not be further prosecuted for the offense charged against him. The court refused to discharge him, and in this there was no error. In reversing the judgment this court simply awarded the prisoner a new trial. That was the full extent of the deci sion, as the records of this court show. The court did not decide that for such error the prisoner should be discharged from prosecution, and could not have intended that such should be the effect of such reversal. What is meant by the "speedy trial" guarantied by the constitution of Virginia, and what is the delay in the trial of one charged with felony that shall forever discharge him from prosecution, has been construed and interpreted by the legislature in the enactment of a statute that "every person against whom an indictment is found charging a felony, and held in any court for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of the circuit, or four of the county, corporation, or hustings court, in which the case is pending, after he is so held without a trial, " unless the failure to try was due to certain causes mentioned in the statute. Section 4047, Code Va. This, or a similar provision, has long been a part of the statute law of the state (1 Rev. Code 1819, c. 169, § 28, and Code 1849, c. 208, § 36), and this legislative interpretation of the constitution has more than once received the sanction of this court. Ad-cock's Case, 8 Grat. 661; Brown v. Epps (decided at the January term last) 21 S. E. 119; and Nicholas v. Com. (decided at the present term) Id. 364. The case was then continued on the motion of the prisoner from time to time until the September term of the court. At this term he obtained leave of the court to withdraw his plea of not guilty, and in lieu thereof offered two pleas in bar of the prosecution against him, though styled "pleas in abatement." They were demurred to by the attorney for the commonwealth. The court sustained the demurrer, and rejected the pleas. They involve the same principle of defense, and may be considered together. The first plea sets forth that at the March term, 1893, of the county court of Loudoun county, he was convicted on the indictment, and the following verdict rendered by the jury: "We, the jury, find the prisoner, D. W. Benton, guilty of grand larceny as charged in the within indictment, and fix his punishment at two years' confinement in the penitentiary, "—upon which verdict judgment was entered against him, but that it was afterwards reversed by this court, and a new trial granted him. The second plea sets forth that he was convicted at the November term, 1892, of the said court, and the following verdict rendered by the jury: "We, the jury, find the defendant, D. W. Benton, guilty as charged in the within indictment, and fix his punishment at two years' confinement in the penitentiary;" that judgment was entered thereon against him, and that such judgment was afterwards reversed by this court, and a new trial awarded him. It was contended and ably argued by his counsel that, the prisoner having been convicted at the March term, 1893, of grand larceny only, and the verdict being silent as to the chargeof housebreaking with intent to commit larceny, he was thereby, in effect, acquitted of the offense of housebreaking with intent to commit larceny; and that the verdict at the November term, 1892, being general and silent as to the larceny charged, it was a verdict for housebreaking with intent to commit larceny only, and, in effect, an acquittal of the charge of larceny; and, consequently, that he had been acquitted of both the felonies charged, and was not liable to be again put upon trial for either of the said offenses, although at do time had a verdict of "not guilty" been rendered in his favor, but he had been convicted at separate times, and by different juries, of each of the said offenses. These pleas present the important inquiry: Upon what charge or for what offense may an accused be tried who has been convicted upon a single count, wherein more than one offense is distinctly or substantially charged, where the verdict of conviction has been set aside, and a new trial granted him? The indictment in the case at bar contained only two counts,. The first was for breaking and entering in the nighttime the meathouse of Mary Neviile, with intent to steal the goods and chattels of Robert Neville; and the second for entering the said house in the nighttime without breaking with the intent aforesaid. Each count also charged the actual larceny of a quantity of meat of Robert Neville, in the said house, of the value of $50. There was no separate count for the larceny. Housebreaking with the intent to commit larceny and grand larceny are distinct offenses under the law, and to each is affixed its own penalty, but they may be, and often are, one continued act, and may be charged in the same count of an indictment. Upon such count the accused may be found guilty of either or both offenses, but there can be only one penalty imposed Com. v. Hope, 22 Pick. 1; Josslyn v. Com., 6 Metc. (Mass.) 230; and 2 Bish. Cr. Proc. § 144. If it is desired to punish for both offenses in a case of this kind, there must be inserted in the indictment a separate count for the larceny, as was done in Speer's Case, 17 Grat 570. An acquittal, where there is but one count, is a bar to prosecution for all offenses therein charged. If there is a conviction generally, and it is submitted to, this is also a bar to all such offenses. If there is a conviction for larceny only, and it is submitted to, this too is a bar to further prosecution for all offenses charged It is when the conviction is not submitted to, but a new trial is granted, that the difficulty arises. When...