Dean v. Commonwealth

• Decision Date: 25 April 1949
• Citation: 53 S.E.2d 141,189 Va. 426
• Parties: DEAN et al. v. COMMONWEALTH.
• Court: Virginia Supreme Court

53 S.E.2d 141

189 Va. 426

DEAN et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 25, 1949.

Error to Circuit Court, Rockingham County; W. V. Ford, Judge.

Lawrence Dean was convicted of wounding another with malicious intent and Floyd Shifflett was convicted of aiding and abetting the first named defendant, and they bring error.

Judgment reversed and cause remanded for a new trial in conformity with opinion.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Julian K. Hickman, of Harrisonburg, and Lawrence H. Hoover, of Harrisonburg, for plaintiffs in error;

J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Asst. Atty. Gen., for Commonwealth.

SPRATLEY, Justice.

At the April, 1948 term of the Circuit Court of Rockingham county, an indictment was returned against Lawrence Dean and Floyd Shifflett, which charged that they, "on or about the 1st day of May, 1948, in the County of Rockingham, did unlawfully and feloniously combine, conspire and confederate together for the purpose of committing an assault and bodily injury upon H. E. Taylor, with intent him, the said H. E. Taylor to maim, disfigure, disable or kill, and in pursuance of said conspiracy and confederation, they, the said Lawrence Dean and Floyd Shifflett, in and upon the said H. E. Taylor did make an assault and him the said H. E. Taylor unlawfully, feloniously and maliciously did beat and wound with their fists and cause him bodily injury; to-wit, a fractured nose, bruises and lacerations, with intent him, the said H. E. Taylor, then and there to maim, disfigure, disable or kill. * * *."

On June 17, 1948, the defendants demurred to the indictment and moved to quash it on the ground that it included charges of two offenses, one, conspiracy, a misdemeanor, and the other, malicious maiming, a felony, which demurrer and motion the court overruled. The defendants then moved to strike from the indictment the language relating to a conspiracy, which motion the court sustained. Thereupon the defendants were arraigned on the indictment as amended and each pleaded not guilty. A jury was impaneled and sworn. The defendants then moved the court to declare a mistrial because it had ruled upon the foregoing demurrer and motions when neither of the accused was present in person. The court sustained their motions, declared a mistrial, and discharged the jury.

Thereupon the defendants demurred to the original indictment on the grounds for merly assigned, and again moved to strike from the indictment the language relating to a conspiracy. The court overruled both the demurrer and the motion. The defendants were rearraigned and each pleaded not guilty. A new jury was then impaneled, sworn, and charged as follows:

"If you find the accused, Lawrence Dean, guilty of wounding H. E. Taylor or causing him bodily injury, by any means, with malicious intent, as charged in the indictment, you will say so and fix his punishment by confinement in the penitentiary for a period of not less than one year nor more than ten years.

"If you do not find him guilty of malicious wounding or malicious bodily injury, as charged in the indictment, but find him guilty of unlawful wounding or unlawful bodily injury, as therein charged, you will say so and fix his punishment by confinement in the penitentiary for a period of not less than one year nor more than five years, or in your discretion, by confinement in jail not exceeding twelve months and by a fine not exceeding five hundred dollars.

"If you do not find him guilty of either of the felonies aforesaid, but find him guilty of assault and battery, as further charged in the indictment, then you will say so and fix his punishment by confinement in jail for a period not exceeding twelve months or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.

"If you find him not guilty, you will say so and no more."

A similar charge was given in the case of Floyd Shifflett.

The defendants objected to the charge to the jury because of its failure to include a direction to make a finding as to the offense of conspiracy. This objection the court overruled, holding that the indictment solely charged the commission of a malicious assault, and that the language which referred to a conspiracy was but a matter of inducement or a part of the felony charged. The trial then proceeded upon the theory that the defendant was charged with the felony only.

After hearing the evidence and instructions of the court, the jury returned a ver-dict finding "Lawrence Dean, guilty of wounding H. E. Taylor with malicious intent, as charged in the indictment, " and fixed "his punishment by confinement in the penitentiary for two years." They further found "Floyd Shifflett, guilty as charged in the indictment, of aiding and abetting the defendant, Lawrence Dean, " and fixed "his punishment by confinement in the penitentiary for fifteen months." The defendants duly moved the court to set aside the verdict and grant a new trial for reasons assigned.

The court overruled the exceptions and entered judgment according to the verdict.

We are asked to reverse the judgment, and set aside the verdict on the grounds, first, that the court erred in failing to sustain the demurrer to the indictment and the motions to quash and amend the indictment; second, that the court erred in failing to strike the Commonwealth's evidence, as insufficient to establish Shifflett as an aider and abetter of Lawrence Dean, or that Dean was guilty of the offense charged; and, third, that the court erred in admitting improper evidence as to the character and general reputation of the defendants.

An indictment should state, with as much certainty as the nature of the case will permit, the facts which constitute the crime intended to be charged, so as to clearly apprise the accused of the crime with which he stands charged, and thus enable him to prepare his defense thereto, and further that the conviction or acquittal may be pleaded in bar of any future prosecution for the same offense.

As a general rule, a defendant cannot be charged in one and the same count with two or more independent offenses, as such, subject to different penalties. The reason of the rule is to prevent confusion, multiplication of issues, and prejudice to a defendant. Hatcher & Shaw v. Commonwealth, 106 Va. 827, 55 S.E. 677; Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652; Digest of Va. & W. Va. Reports, (Michie), Vol. 5, page 633, and cases cited; 42 C. J. S., Indictments and Informations, § 162, page 1112.

We have many times held that indictments for statutory offenses should be couched in the language of the statute. Virginia Code 1942, (Michie), section 4402, sometimes called the maiming act, is purely statutory. It is not requisite to charge in an indictment for a violation of that section any more than is necessary to accurately and adequately charge the felony.

In 11 Am. Jur, Conspiracy, section 9, page 549, it is said: "The rule appears to be well settled in most jurisdictions that a conspiracy to commit a crime is not merged in the commission of the completed offense, but is a distinct offense of itself and punishable as such, notwithstanding its object, the attempted crime, has been accomplished. This is the universal rule where the conspiracy and the executed act are crimes of equal grade, and also seems to be generally true now regardless of whether the conspiracy or its object is regarded as the same grade of offense or the one is regarded as of a higher grade than the other, as where one is a felony and the other a misdemeanor. Some of the cases have stated-- mostly by way of dictum--that where a conspiracy is a misdemeanor and its object, the substantive crime, a felony, the conspiracy would merge in the substantive crime; but this doctrine has seldom been actually applied and seems now to have been generally abandoned."

The minority rule was followed in Anthony v. Commonwealth, 88 Va. 847, 850, 14 S.E. 834, 835. There it was said: "But although the conspiracy is a complete offense by itself, before it is carried into effect, yet if the act conspired to be done be a felony, and it is carried into effect, and the felony is committed, the conspiracy is merged in the felony, and the indictment should be for the felony, and not for the conspiracy." (Citing cases.)

In State v. Wisman, 93 W. Va. 183, 116 S.E. 698, an indictment in almost the identical language of the one before us was held good upon demurrer, the West Virginia court holding that the lesser crime of conspiracy therein charged was included in the greater crime of malicious assault.

The indictment before us, according to the contention of the Commonwealth, merely sets out the preliminary stages of the felony charged. It is contended that the allegations as to a conspiracy constitute only a part of the general scheme of which the crime charged was a part. Such allegations were unnecessary to charge a felony under the maiming act, Code, section 4402, and they can be regarded as...