Brookman v. Commonwealth

• Citation: 145 S.E. 358
• Parties: BROOKMAN. v. COMMONWEALTH.
• Decision Date: 15 November 1928
• Court: Virginia Supreme Court

145 S.E. 358

BROOKMAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 15, 1928.

Error to Circuit Court, Albemarle County.

Wayman Brookman was convicted of robbery by violence, and he brings error. Affirmed.

W. Gilmer Dunn, of Charlottesville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

CAMPBELL, J. The plaintiff in error was indicted for robbery by violence. Tried by a jury, upon his plea of not guilty, he was found guilty as charged, and his punishment fixed at death.

There are six errors assigned:

First, in permitting the attorney for the commonwealth to amend the indictment on day of trial, over the objection of counsel for petitioner;

Second, overruling demurrer to the amended indictment;

Third, overruling exception to the clerk's charge to the jury;

Fourth, giving improper instructions to the jury;

Fifth, overruling motion to set aside the verdict as contrary to the law and the evidence and without evidence to support it; and

Sixth, overruling motion in arrest of judgment.

So far as applicable, the indictment, as amended, reads thus:

"That said Wayman Brookman, within twelve months prior to the finding of this indictment, to-wit, on the thirty-first day of October, 1927, and in the county aforesaid, in and upon one Stella Mustard, feloniously did make an assault, and that the said Wayman Brookman, with a certain shotgun then and there charged with gun powder and leaden balls, with which shotgun, he the said Wayman Brookman, in his hand then and there held, then and there feloniously did discharge off, at, against and upon the said Stella Mustard, and the said Wayman Brookman, with the leaden balls aforesaid, out of the shotgun aforesaid, discharged and shot off as aforesaid, then and there feloniously and violently did strike, penetrate and wound the said Stella Mustard, in and upon the side of the head, and he, the said Wayman Brookman, in the manner and by the means aforesaid, did then and there, her the said Stella Mustard, in great bodily fear and by violence, feloniously did put, in the manner and by the means aforesaid, and nine dollars ($9.00) in legal currency of the United. States of America, of the value of nine dollars ($9.00) of the goods and chattels, legal currency and property of the said Stella Mustard, from the person, in the presence, custody and control of the said Stella Mustard, and by force, violence and against the will of the said Stella Mustard, then and there, to-wit, on the day and year aforesaid, feloniously and violently did steal, take and carry away. * * *"

The language in italics indicates the amendments allowed.

If it was error to permit the attorney for the commonwealth to amend the indictment, then the second, third, and fourth assignments of error are also well founded, as the indictment, clerk's charge, and instructions given are all dependent upon the legal proposition of whether or not the accused has been properly charged with and convicted of an offense carrying with it the death penalty.

Robbery is a common-law crime in this state, and while our statute, section 4405 of the Code, regulates the punishment, it does not attempt to define robbery, but leaves the crime as it was defined at common law. Robbery at common law is thus denned in Mr. Minor's Synopsis of the Law of Crimes and Punishments, p. 80:

"The definition of robbery, in its common law sense, is the felonious and forcible taking of money, or goods of value from the person of another, or in his presence, against the owner's will, by violence or putting him in fear."

See, also, 2 East, P. C. 707; Wharton's Criminal Law (8th Ed.) vol. 1, p. 657; 2 Bishop, Cr. Law (1st Ed.) p. 414; 34 Cyc. p. 1796: 25 R. C. L. p. 1139.

The indictment, it is contended by the accused, contained but one count, and this count contained two entirely separate and distinct offenses, and therefore the indictment is demurrable. To constitute a good and sufficient indictment for robbery, the indictment must allege a felonious taking of personal property of another, against his will, from his person, or what is equivalent thereto, in his presence, by force or putting him in fear. Houston's Case, 87 Va. 257, 12 S. E. 385. While the indictment is not skillfully drawn, it does charge, prior to the amendments, all the elements of robbery at common law. It sets forth that the accused made a felonious assault upon Stella Mustard with a shotgun loaded with gunpowder and leaden bullets, which he fired at her, striking and wounding her; that, as a result of the assault, he put her in bodily fear; and thatfrom the custody and control of Stella Mustard, by force, violence, and against her will, feloniously did steal, take, and carry away the sum of $9, legal currency, the property of the prosecutrix.

The amendments permitted by the court did not change the "character of the offense charged, " nor do we think they were essential to the validity of the indictment. The indictment contained all the essential common-law elements, and fully apprised the accused of the fact that he was being tried under the first clause of section 4405 of the Code. The amendments amounted to a nullity, hence it was not error to overrule the demurrer.

The fifth assignment of error calls in question the action of the trial court in overruling the motion to set aside the verdict as contrary to the law and the evidence.

The evidence adduced by the commonwealth shows the following: The accused, who was 20 years of age, on the morning of October 31, 1927, armed with a shotgun, went to a store in which is located the post office at Cismont, in Albemarle county, Va. This store was owned by Mrs. Stella Mustard. The accused stopped on the porch a few minutes before going in, and then went into the store carrying his gun. He first asked for a tin of tobacco and a package of cigarettes which Mrs. Mustard handed him and which he put in his pocket. He then asked for some shotgun shells. The witness could not remember which number he asked for. The accused then purchased a pair of socks and a pair of shoes. Mrs. Mustard figured up the amount of his purchases and told him how much he owed her, starting at the time to wrap up the shoes. The accused hesitated and seemed undecided, and then asked her what was the price of a knife which was in the showcase, and directed Mrs. Mustard to wrap it up with the shoes. While she was wrapping the package, he walked toward the counter as if looking at something. At that instant, Mrs. Mustard testified, she seemed to realize that she had been struck on the head by what she thought was the scale weight. She was unable to say whether she fell or sank to the floor. She put her hand to her head and felt a substance which she thought was her brains, but afterwards found it was oatmeal and blood. It was two or three minutes before she heard the accused make any move. When she did hear him move, she ...