Briggs v. Commonwealth

• Decision Date: 18 November 1886
• Citation: 82 Va. 554
• Parties: BRIGGS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

82 Va. 554

BRIGGS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 18, 1886

Error to vacation order of judge of circuit court of Culpeper county, denying a writ of error and supersedeas to judgment of county court of said county, rendered 22d February, 1886, on an indictment against Wm. Briggs for the murder of M. B. Nalls, whom the jury had found guilty, and whose imprisonment in the penitentiary they had fixed at eighteen years.

Opinion states the case.

Davis & Harman, for the plaintiff in error.

Attorney-General R. A. Ayers, for the Commonwealth.

OPINION

LACY J.

The plaintiff in error was convicted of murder in the second degree in the county court of Culpeper at the February term of the said court, 1886, and applied for a writ of error to the circuit court of said county, which was refused. Whereupon, the case was brought to this court upon a writ of error. The homicide was committed September, 1885, and a trial was had in the county court of the case, in which the accused was convicted of murder in the second degree. Upon appeal to the circuit court, the conviction at the September term, 1885, was set aside and a new trial awarded.

At the trial at the February term, 1886, the plaintiff in error pleaded that he had been before acquitted of the charge of murder in the first degree, by virtue of the former conviction of murder in the second degree, and this plea being rejected by the court, moved the court to instruct the jury, or so modify the charge to the jury, as to exclude a finding of murder in the first degree; which motion the court overruled; and this ruling of the court rejecting the plea and refusing to modify the charge to the jury so as to exclude a conviction for murder in the first degree constitutes the first assignment of error.

Mr. Blackstone says that the plea of " autrefois acquit, " or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. 4 Bla. 335.

But the plea in this case is not that the accused was acquitted of the murder charged in the indictment, but convicted of murder which the jury ascertained to be murder in the second degree--that is, convicted of part of the offence charged, and that such conviction of a part of the offence operated as an acquittal of the other part, or murder in the first degree. It was a rule of the common law that while more than one offence, even though of the same grade, could not be included in the same count of an indictment, yet it was necessary to set out all the facts constituting an offence in an indictment for it, and as these facts often in themselves are separate offences, a party might be convicted of any offence substantially charged in the indictment, provided it was of the same grade with the principal or total offence charged. So that if a party were indicted for one felony, as, for example, murder, he might be found not guilty of the murder, but guilty of the crime of manslaughter, which is embraced in the charge. At the common law, a count for a misdemeanor could not be joined in the same indictment with a count for felony, nor could a party indicted for a felony be convicted on that indictment of a misdemeanor.

The common law of England was brought to Virginia by our ancestors, upon the settlement of the State. The Colony of Virginia was first settled by emigrants from Great Britain, who brought with them such laws as were necessary to settle the rights of property, to restrain the lawless, and to protect the weak; and in 1661, the laws of England were expressly recognized by an act of the Colonial legislature, and after all connection had been severed between this and the mother country in May, 1776, it was declared by our legislature that " the common law of England and all statutes or acts of Parliament made in aid thereof, prior to the fourth year of James I., which are of a general nature not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist, with the several ordinances, declarations and resolutions of the general convention, shall be considered as in full force until the same shall be altered by the legislative power of the Commonwealth. " 1 R. C. ch. 38.

The common law has been changed by statute in this State upon this subject. It was provided by the Legislature by the acts of 1844-5, as is now found in the 25th section of the 17th chapter of our Criminal Code: " If any person indicted of felony be, by the jury, acquitted of part, and convicted of part, of the offence charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor. " And by the act of 1847-8, as is provided in the 29th section of the Criminal Code, chapter 17 (Acts 1877-8, p. 345), " on an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such felony; and a general verdict of not guilty upon such indictment shall be a bar to subsequent prosecution for an attempt to commit such felony."

The defence set up by the plea in question is not that the former acquittal was express, as we have seen, nor that it was operated by inference under the foregoing 25th or 29th sections of chapter 17, of the Criminal Code, but the plea is that the conviction was for murder in the second degree, and there are cited decisions of this court which are claimed to sustain the proposition. In Lithgow v. The Commonwealth, 2 Va. Cas. 297, there were several counts in the indictment; Kirk v. The Commonwealth, 9 Leigh 627; Page v. The Commonwealth, 9 Leigh 683; Richards v. The Commonwealth, 81 Va. 110. In all of which there were several counts in the indictment, and a conviction upon one count, was held to be an acquittal on the counts as to which the verdict was silent. But the case of Stuart v. The Commonwealth, 28 Gratt. 950, is cited as sustaining the proposition contended for in a case where the indictment contained only one count. In that case the indictment was for a felony, and the accused was convicted of a misdemeanor.

The defence here is, that the plaintiff in error, having been once in jeopardy upon the charge of murder in the first degree and acquitted, he cannot be again put in jeopardy for the same offence without violating the Constitution, both of the United States and of Virginia.

We may remark that it is a principle in our system of jurisprudence, that a controversy once conducted to final judgment cannot be renewed in a fresh suit between the same parties.

In England in the criminal law this principle was recognized as we have said. In this State we have taken the maxim stated above on the authority of Mr. Blackstone for our unbending rule, which is in accordance with the common law. The Constitution of the United States provides that " no person shall be subject for the same offence to be twice put in jeopardy of life or limb." Act of Amend't 5, C. U. S. And although this provision binds only the United States, not extending to a State, our courts have received and followed it as expressive of the true common law rule. And our legislatures have extended and regulated the application of the principle as they appear to have the power to do under our constitution, which has granted to the legislature all legislative powers and is upon this subject silent. These provisions are found in the 10th chapter of the Criminal Code, Acts 1877-8, and as to a former acquittal it is provided: " A person acquitted by the jury upon the facts and merits on a former trial may plead such acquittal in bar of a second prosecution for the same offence, notwithstanding any defect in the form or substance of the indictment or accusation on which he was acquitted." Sec. 15.

Section 16 provides that " a person acquitted of an offence on the ground of a variance between the allegations and the proof of the indictment or other accusation, or upon an exception to the form or the substance thereof, may be arraigned again on a new indictment or other proper accusation, and tried and convicted for the same offence, notwithstanding such former acquittal."

And by the Acts of 1877-78, p. 344, the legislature added to the act of 1844-5, as stated above, now the 25th section of chapter 17 of the Criminal Code, the following: " But if a verdict be set aside on the motion of the accused and a new trial awarded, on such new trial the accused shall be tried and such verdict may be found and sentence pronounced as if a former verdict had not been found." This provision viewed in the light of the cases cited and the discussion which has gone before, is of plain significance, and is intended to apply to cases where in one indictment under our system a felony is charged in the indictment and a verdict is found of not guilty of the felony, but guilty of some lesser offence substantially charged therein. For example, on an indictment for robbery and a verdict of not guilty of the robbery, but guilty of assault and battery (as in Hardy & Curry v. Commonwealth, 17 Gratt. 592), or of felonious homicide and a verdict of not guilty of the felony, but guilty of involuntary manslaughter. This subject, as we have seen, is within the scope of legitimate legislative action in this State; and...