Dean v. Commonwealth
| Decision Date | 18 April 1949 |
| Docket Number | Record No. 3513. |
| Court | Virginia Supreme Court |
| Parties | LAWRENCE DEAN AND FLOYD SHIFFLETT v. COMMONWEALTH OF VIRGINIA. |
1. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Requisites and Sufficiency of Charge — Indictment Should Include All facts Necessary to Constitute Crime. — 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 apprise the accused clearly 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.
2. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Duplicity — One Count Charging Two or More Independent Offenses. — 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.
3. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Requisites and Sufficiency of Charge — Indictment Should Be Couched in Language of Statute. — The Supreme Court of Appeals has many times held that indictments for statutory offenses should be couched in the language of the statute.
4. MAYHEM — Indictment under Maiming Act — Sufficiency. — Section 4402 of the Code of 1942 (Michie), 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 accurately and adequately to charge the felony.
5. CONSPIRACY — Indictment — Merger in Felony. — Although a 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.
6. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Duplicity — Indictment Charging Conspiracy and Malicious Maiming in One Count — Case at Bar. — In the instant case, a prosecution for maiming under section 4402 of the Code of 1942 (Michie), the indictment charged the defendants with conspiring to commit an assault with intent to maim, and with making such an assault. Defendants demurred to the indictment on the ground that it included charges of two offenses, and moved the trial court to strike from the indictment the language relating to conspiracy. The Commonwealth argued that the allegations as to conspiracy merely set out the preliminary stages of the felony charged. The court overruled both the demurrer and the motion.
Held: That the allegations as to conspiracy were unnecessary to charge a felony under section 4402 and could be regarded as surplusage. Inasmuch as they caused the averments of the indictment to border on duplicity, the trial court might properly have struck them out. But without them a felony was charged, and that was the only crime for which the Commonwealth sought conviction, and the only crime charged which defendants were required to defend. For these reasons, there was no prejudicial error in the rulings of the trial court.
7. MAYHEM — Prosecutions — Evidence Sufficient to Present Jury Question under Maiming Act — Case at Bar. — In the instant case, a prosecution for maiming under section 4402 of the Code of 1942 (Michie), the evidence for the Commonwealth was that defendants began a wrestling match in the course of which they shoved the complaining witness purposely to involve him, having been warned that he was an undercover investigator for the A. B. C. Board who intended to entrap them, and then committed the offense charged in the ensuing fight. Defendants testified that they were unaware of the identity of the complaining witness, that he started wrestling with one defendant and the fight with the other ensued when the latter attempted to stop the wrestling. They contended that the trial court erred in failing to strike the Commonwealth's evidence, as insufficient to establish one defendant as an aider or abetter and that the other was guilty of the offense charged.
Held: No error. Considered in the light of all the circumstances, the evidence was sufficient to present a jury question.
8. CRIMINAL LAW — Proof of Other Crimes — General Rule. — In the absence of statute, unless the accused has put his character in issue by first offering evidence of his good general reputation, it is error to admit in evidence against an accused another specific offense by him, wholly unconnected with that for which he is put on trial. The rule is intended to restrain proof within the limits of the charge against a defendant, and to prevent his conviction for one offense because, perhaps, he committed others. It is against the tradition and policy of our law to convict a man of a specific crime merely because he is generally regarded as a man of bad reputation. The policy of excluding such evidence tends to prevent confusion of issues, unfair surprise, and undue prejudice.
9. CRIMINAL LAW — Proof of Other Crimes — Admission of Evidence of Other Offenses Held Error — Case at Bar. — In the instant case, a prosecution for maiming under section 4402 of the Code of 1942 (Michie), the Commonwealth's attorney was allowed to question defendants as to their conviction of other offenses, some of a similar nature. Defendants did not put their respective characters and general reputations in issue.
Held: Evidence of the prior offenses of assault and battery by defendants upon other persons, on different days at different places, was not admissible, and it was clearly improper, under the circumstances, to allow the witnesses to be questioned as to specific offenses wholly unconnected and unrelated to the offense for which they were on trial. The questions asked and evidence adduced had the effect of casting an innuendo unfavorable to them in the jury box, and the defendants were required only to meet the specific offense with which they were charged.
Error to a judgment of the Circuit Court of Rockingham county. Hon. W. V. Ford, judge presiding.
The opinion states the case.
Julian K. Hickman and Lawrence H. Hoover, for the plaintiffs in error.
J. Lindsay Almond, Jr., Attorney General, and Ballard Baker, Assistant Attorney General, for the Commonwealth.
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 formerly 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:
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...
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