Butler v. Commonwealth

• Decision Date: 03 December 1885
• Citation: 81 Va. 159
• Parties: BUTLER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

81 Va. 159

BUTLER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 3, 1885

Error to judgment of corporation court of the city of Alexandria rendered April 21, 1885, and sentencing Jesse Butler, the plaintiff in error, to confinement in the penitentiary for the period of three years, upon a verdict of the jury finding him guilty, on an indictment for house-breaking with intent to steal, & c.

The opinion states the case.

Samuel G. Brent, for the plaintiff in error.

F S. Blair, attorney-general, for the Commonwealth.

OPINION

RICHARDSON J.

The indictment charging that the plaintiff in error, Jesse Butler, " on the 13th day of February, 1885, in the said city--to wit: within one mile of the corporation limits of said city, did a certain store-house, not adjoining or occupied with the dwelling-house of one David A. Studds, there situate, in the night time of that day, feloniously did break and enter with intent, the goods and chattels of the said David A. Studds in the said storehouse, then and there being, feloniously to steal, take, and carry away, and twelve dollars of United States silver coin, of the value of twelve dollars, of the money and property of said David A. Studds, then and there being found, then and there feloniously, did steal, take, and carry away, against the peace and dignity of the Commonwealth of Virginia."

Upon his arraignment the prisoner moved the court to quash the proceedings, and objected to the arraignment, but assigned no grounds for his motion; which was overruled, and the prisoner excepted. He then moved to quash the indictment, and demurred to same; which motion and demurrer were also overruled, and the prisoner again excepted.

Upon the trial the jury rendered their verdict as follows--to wit: " We, the jury, find the prisoner, Jesse Butler, guilty as charged in the within indictment, and fix his punishment at confinement in the penitentiary for two years." Whereupon the prisoner moved the court for a new trial, and in arrest of judgment, which motions the court likewise overruled, and gave judgment upon the verdict as found by the jury.

The first assignment of error is, that the court below should have sustained the prisoner's motion to quash the indictment and proceedings, because the prisoner had not been carried before a justice of the peace of the said city for an examination of the alleged offence, and therefore could not be tried therefor.

After a careful examination of the authorities bearing upon the subject, we have no difficulty in deciding that a person cannot in Virginia, be tried for a felony, without a previous examination of the offence of which he stands charged, before a justice, unless he waives such examination. See Acts 1877-'8, §12, ch. 14, p. 328; and §16, ch. 16, of same p. 336. In Cahoon's Case, 20th Gratt. 733, decided in 1871, on the question whether such examination by a single justice was required by law as matter of necessity, before a person could be tried for a felony, though he had been indicted therefor by a grand jury of the county in which the offence is charged to have been committed, this court (four judges being present) stood equally divided, Moncure, P., and Anderson, J., earnestly contending that such previous examination was not necessary, whilst Staples, J., in an able and lucid opinion, in which Christian, J., concurred, supported the affirmative. In reply to Staples, J., Moncure, P., said (p. 763) that the former's construction of the statute required the striking out from section 16, ch. 207, Code of 1849 (same as §16, ch. 201, Code of 1873), the important words, " such process if the...