Cates v. Commonwealth

• Decision Date: 30 November 1910
• Citation: 69 S.E. 520,111 Va. 837
• Parties: CATES v. COMMONWEALTH.
• Court: Virginia Supreme Court

69 S.E. 520

(111 Va. 837)

CATES

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 30, 1910.

1. Indictment and Information (§ 191^*)— Conviction of Lesser Offense — When Justified.

To justify a conviction of a minor offense on an indictment for another offense, the minor offense must be an ingredient of the offense charged.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 604-621; Dec. Dig. § 191.*]

2. Criminal Law (§ 44*)—Intent to Commit Felony—"Attempt."

An intention to commit a felony, and the doing of some act towards its commission, without actually committing it, is an "attempt."

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 51; Dec. Dig. § 44.*

For other definitions, see Words and Phrases, vol. 1, p. 621; vol. 8, p. 7586.]

3. Indictment and Information (§ 190*)— Conviction of Lesser Offense—Attempt to Commit Felony Charged.

An attempt to commit a felony charged is included in or a part of the offense charged, and one charged with a felony may be convicted of an attempt.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 596-603; Dec. Dig. § 190.*]

4. Criminal Law (§ 193 1/2*)—Former Jeopardy—Acquittal.

A conviction of an attempt under an indictment charging felony is an acquittal of the felony.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 387-389; Dec. Dig. § 193 1/2.*]

5. Criminal Law (§ 193 1/2*)—Former Jeopardy—Acquittal.

Under Code 1887, § 4040 (Code 1904, p. 2127), providing that if a verdict finding accused, indicted for a felony, guilty of a part of the offense, be set aside, he shall not be tried for any higher offense than that of which he was convicted, one obtaining a new trial after a conviction of an attempt to commit a felony, under an indictment charging a felony, may only be tried for the attempt to commit the felony.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 386-389; Dec. Dig. § 193 1/2.*]

Error to Hustings Court of City of Portsmouth.

T. C. Cates was convicted of crime, and he brings error. Reversed.

Samuel W. Williams, Atty. On., for the Commonwealth.

BUCHANAN, J. The accused, the plaintiff in error, was indicted and tried for rape. On the first trial he was found guilty of an attempt to commit the offense charged. Upon his motion, the verdict of the jury was set aside and a new trial granted him. Upon that trial, over his objection, he was tried for rape and found guilty. He moved in arrest of judgment and for a new trial, but both motions were overruled, and judgment entered upon that verdict. To that judgment this writ of error was awarded.

The action of the court in trying the accused for rape, instead of trying him for an attempt to commit that offense, is assigned as error.

Section 4044 of the Code of 1887 (page 2129, Code 1904) provides that, "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 foe a bar to a subsequent prosecution for an attempt to commit such felony."

By section 4040 of the Code (page 2127, Code 1904) it is provided that, "if a person indicted of felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced for such part as he is convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor. If the verdict be set aside and a new trial granted, the accused shall not foe tried for any higher offense than that of which he was convicted on the last trial."

In Stuart's Case, 28 Grat. 950, it was held that where there is but one count in an indictment, and on that the accused may be convicted of one of several offenses which are covered by the indictment, the verdict of the jury finding the accused guilty of one of the offenses charged is a verdict of acquittal of all the others of a higher grade of offense, except, perhaps, in an indictment for murder, where the jury find the defendant guilty of murder in the second degree. In that case, which was an indictment for malicious assault with intent to kill, there was a verdict upon the first trial for unlawful assault. Upon the motion of the accused that verdict was set aside and a new trial granted. Upon that trial the accused was convicted of malicious assault with intent to kill. Upon a writ of error to this court it was held that finding the accused guilty of the unlawful assault was an acquittal of the malicious assault. The judgment was reversed, and the case remanded for a new trial for the unlawful assault. At that time there had been no legislation upon the question here involved. The next General Assembly changed the rule laid down in that case, by amending section 28 of chapter 208 of the Code of 1849 by adding the following: "But if the 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 as if a former verdict had not been rendered." Acts 1877-78, p. 279, c. 311.

At the general revision of the civil and criminal laws of the state, made by the Code of 1887, section 28, c. 208, of the Code of 1849, as amended by the act of 1877-78, was changed, and as changed was carried into the Code of 1887 as section 4040 (Code 1904, p. 2127). That section, as hereinbefore quoted, provides, among other things, that if the verdict be set aside and a new trial granted the accused, he shall not be tried for any higher offense than that of which he was convicted on the last trial.

What was meant by the term "higher offense, " as used in that section, was involved in Benton's Case, 91 Va. 782, 21 S. E. 495. It was there said that it was "not easy, in construing the statute, to lay down an inflexible rule that will apply to all cases. As a general rule, however, it is to be determined by the maximum penalty affixed to the offense. Into some offenses some other element besides the measure of the penalty may perhaps enter and affect the distinction. If so, such case will be dealt with when it arises." It was further said in that case by Judge Riely, who wrote the opinion of the court, and who was one of the revisors of the Code of 1887, that "the Legislature, in enacting section 4040" (and he might have added, the revisors, in suggesting the change made in the law, for two of them were members of this court when the Stuart Case was decided), "had in mind, no doubt, such offenses as murder, malicious shooting, etc., with intent to maim, etc., robbery, larceny, and the like, in which the grades of the offense are very distinct"

Not only in the cases mentioned by Judge Riely, but in most indictable offenses, the offense comprises two or more grades. Wharton's Criminal Pl. & Pr. § 465.

Mr. Wharton says, in his work on Criminal Law, that "questions frequently arise whether a particular offense is divisible; in other words, whether it is susceptible of being divided into two or more offenses, each to be open to a separate prosecution. The first line of cases of this class we have to notice is where one offense is an ingredient of another, as assault in assault and battery, manslaughter in murder, and larceny in burglary. Several of such concentric layers may successively exist. Thus we may take the case of assault, enveloped by a battery, and this by manslaughter, and this by murder. Add the blow to the assault, and it becomes assault and battery; add...