Clark v. Commonwealth

• Decision Date: 18 January 1923
• Citation: 115 S.E. 704
• Court: Virginia Supreme Court
• Parties: CLARK. v. COMMONWEALTH.

115 S.E. 704

CLARK.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Error to Circuit Court, Chesterfield County.

One Clark was convicted of breaking and entering a railroad car with intent to commit larceny, and be brings error. Affirmed.

L. O. Wendenburg and J. M. Turner, both of Richmond, for plaintiff in error.

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

BURKS, J. The accused was convicted of breaking and entering a railroad car with intent to commit larceny and sentenced to confinement in the penitentiary for 10 years.

The Attorney General makes the objection that bill of exception No. 1, containing the evidence and the instructions of the court, is no part of the record because it does not affirmatively appear to have been taken within the time prescribed by law, citing James v. Commonwealth, 133 Va. —, 112 S. E. 761, and Kelly v. Trehy, 133 Va. —, 112 S. E. 757. It was necessary for this to appear, but the record sufficiently shows that fact. The final judgment was entered May 31, 1021, and if the bill was filed on or before July 25, 1921, it was within time. Four bills of exception were taken in the case. Bills numbered 2, 3, and 4 all bear dale July 25, 1921. Bill No. 1 bears teste "this — day of July, 1921." There is nothing in the record to suggest that all of the bills were not signed on the same day. They are numbered consecutively 1, 2, 3, 4, and we cannot presume that the last three were signed at. an earlier date than No. 1. The condition of the record is such that, in the absence of evidence to the contrary, we must assume that all of them were signed at the same time, to wit, July 25, 1921, which was within the time prescribed by law.

The first assignment of error is to the action of the trial court in amending an instruction offered by the defendant. On the oral argument, counsel for the accused stated that his objection to the amendment was "so narrow" that he "was almost inclined to waive it." Under these circumstances, we have no inclination to burden this opinion with a discussion of it.

The second assignment of error is to the refusal of the trial court to amend an instruction. The indictment contains a single count, and charges the defendant with breaking and entering a certain railroad car with intent to commit larceny therein, and the larceny from the ear of certain enumerated articles of personal property of the aggregate value of $156. After the evidence had been submitted, instructions given, and the case argued and submitted to the jury, the jury retired to their room to consider of their verdict, and after a while returned into court and asked to be instructed as to the punishment to be inflicted. Thereupon the court instructed them that if they found the accused guilty of breaking and entering the car with intent to commit larceny, his pun ishment should be not less than 1 nor more than 10 years in the penitentiary, or in the discretion of the jury confinement in jail for 12 months and a fine not exceeding $500; and if they found him guilty of the larceny of $50 worth of property, then his punishment should not be less than 1 nor more than 10 years in the penitentiary. Thereupon the accused asked the court to give the following instruction:

"The court instructs you that should you find the accused guilty of breaking and entering the car with intent to steal, and also guilty of stealing the property as set forth in the indictment, then you can bring in a verdict for only one of the offenses according to your discretion."

In Speers' Case, 17 Grat. (58 Va.) 570, 572, speaking of a similar count in an indictment, it is said:

"The first count, however, charges the statutory offense of housebreaking, with a twofold averment of an intent to steal, and of the actual theft. The averment of the intent to steal is sufficient under the statute; so also, where the felony has actually been committed, it seems sufficient to allege the commission; as that is the strongest evidence of the intention. But the intent to commit a felony, and the actual commission of it, may both be alleged; and, in general, this is the better mode of statement. 1 Hale, 5C0; 2 East. P. C. c. 15, § 25, p. 514; Rex v. Furnival, Russ. & Ry. 445. Had this count contained only the averment of the intent, I presume there would be no ground for the present complaint. If it had omitted this averment and substituted it by an allegation of actual theft alone, the case would be different from the present; and upon that I am not called upon to give an opinion. But here we have this complex crime set forth by a threefold specification of the housebreaking, the intent to steal, and the actual theft. How shall such a count be construed? Shall it be taken as a count for felonious housebreaking, or as a joint count for housebreaking and larceny? And in case of a general finding under such a count, shall the conviction be of housebreaking or of larceny, or of both? These questions, I think, are easily solved upon authority and the well-established principles of criminal pleading."

After examining cases from other jurisdictions, it is said:

"If, therefore, this count had stood alone, we would be bound by these authorities to treat it as a count for the statutory offense of housebreaking, and to accept a general verdict of guilty under it, as a conviction of that offense, and not of larceny."

Later on, however, it is said:

"In case of a similar count in burglary, it has been held, the burglary may be negatived and the larceny found; so that if there be a genera] verdict of acquittal, no future trial could be had for the larceny comprised in the charge; but a general finding of guilty would lead to a sentence of housebreaking, and not larceny."

In Vaughan's Case, 17 Grat. (58 Va.) 570, 570, after stating that the charge of larceny in an indictment of this kind is introduced in aid of the allegation of intent, and of the particularity with which the larceny should be alleged, it is said:

"It is always better, however, to lay the charge of larceny in proper form, to avoid objection in case the prisoner should, as he may, on such a count as this, be found not guilty of the breaking and entering, but guilty of the larceny."

In Benton's Case, 91 Va. 782, 21 S. E. 495, it is said:

"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 of the offenses, but there can be only one penalty imposed. Com. v. Hope, 22 Pick. 1; Josslyn v. Com., 6 Metcalf, 230; and Bish. on Cr. Pr. vol. 2, § 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.'

It would appear from these authorities that where the accused is charged with breaking and entering with intent to commit larceny, and the commission of the larceny, he might be convicted of either offense but not of both. The carbreaking with intent to commit larceny would be complete, under section 4439 of the Code,...