Dowdy v. Commonwealth

• Decision Date: 16 August 1852
• Citation: 50 Va. 727
• Parties: DOWDY v. COMMONWEALTH.
• Court: Virginia Supreme Court

50 Va. 727

DOWDY v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

August 16, 1852

1. An indictment contains several counts, one for larceny, others for receiving stolen goods knowing them to have been stolen and others for aiding another person to conceal stolen goods knowing them to have been stolen. The charges in all the counts, however, relate to the same goods, which in different counts are laid to be the goods of different persons, or of a person unknown. HELD: It is not a case in which the court should quash some of the counts, or compel the prosecution to elect on which count the prisoner shall be tried.

2. It is a good objection to a juror in a case of felony that he is not a freeholder.

3. If a prisoner's objection to a juror is improperly overruled the error is not cured by the juror's name being stricken off from the panel by the prisoner, or his not being drawn as one of the twelve who are to try the prisoner.

The case is fully stated by Moncure, J. in his opinion.

Irving and Johnson, for the prisoner.

Grattan, for the commonwealth.

MONCURE J.

This is a writ of error to a judgment of the Circuit court of Cumberland, rendered in April last, convicting the prisoner William H. Dowdy of grand larceny, and sentencing him to imprisonment in the penitentiary for one year. The indictment contains ten counts, in each of which the subject of the larceny is stated to be " eleven hundred and forty pounds of tobacco, of the value of one hundred dollars," but each of which is different from the others in some incidental circumstance. The first is a common count for larceny, stating the owner of the property to be a person to the jurors unknown. The next six are for receiving stolen tobacco, knowing it to have been stolen. And the last three are for aiding John Bailey, a free man of color, in concealing stolen tobacco, knowing it to have been stolen. In all of the last nine, the property is stated to have been stolen by a person to the jurors unknown. In three of them it is stated as the property of Nathaniel M. Osborne, in the other three as the property of George McGlasson, and in the other three as the property of a person to the jurors unknown. In three of the six counts for receiving, the property is stated to have been received of John Bailey, a free man of color; and in the other three of a person to the jurors unknown. All of the counts except the first are upon the 19th section, chap. 192, p. 729 of the Code, which is in these words: " If any free person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted." On the arraignment of the prisoner, and when the indictment was read to him, and before he had pleaded thereto, he moved the court to quash each count of the indictment; which motion the court overruled. He then moved the court to quash the whole indictment; which motion the court also overruled. And to the opinions of the court overruling said motions, the prisoner severally excepted. He then demurred generally to the indictment and each count thereof; but the court overruled the demurrer, and he then pleaded not guilty. The prisoner was tried and found guilty; and exceptions were taken to sundry opinions given by the court on the trial; but as the verdict was set aside and a new trial granted, it is unnecessary to take any notice of these exceptions.

On the second trial of the cause, four bills of exceptions to opinions of the court given on the said trial, were made part of the record. The first states, that on the trial of the case, before the jury were sworn, and before they were charged, the prisoner moved the court to compel the attorney for the commonwealth to elect under which count or counts of the indictment he would prosecute the prisoner; but the court overruled the motion, and permitted the said attorney to prosecute under the whole indictment. The second is in regard to a motion of the prisoner to strike the name of John M. Hammontree from the panel of twenty-four jurors; which was overruled by the court, but which it is unnecessary to notice any further. The third states, that after the persons summoned under the first venire facias had been examined, the court failing to make up the panel of twenty-four out of the persons so summoned, directed the sheriff to call the bystanders; among whom Robert H. Amos was called, sworn and examined by the court, and upon such examination stated that he was a freeholder in a county adjoining Cumberland, but was a resident, though not a freeholder in Cumberland: and the prisoner excepted to the said Amos because he was not a freeholder in the county of Cumberland, and not qualified according to law; but the court overruled the exception, decided that he was a juror free from exception, and placed him on the panel of twenty-four. The fourth states, that after the persons summoned under the first venire facias had been examined, the court failing to make up the panel of twenty-four out of the persons so summoned, directed a second venire to summon sixty persons from the body of the county; on which second venire John M. Shepherd was summoned, and being sworn and examined by the court, he stated that he was not a freeholder; and the prisoner challenged the said Shepherd because he was not a freeholder and qualified as a juror according to law; but the court overruled the said challenge, decided that he was a juror free from exception, and placed him on the said panel of twenty-four. The prisoner was afterwards tried and again found guilty; and moved the court for a new trial, because the verdict was contrary to the law and the evidence. But the court overruled the motion, and the prisoner excepted, and his bill of exceptions was made a part of the record; but it is unnecessary to notice it any further.

I think there is no error in the several opinions of the Circuit court overruling the demurrer; and overruling the motions of the prisoner to quash the indictment, and each count thereof; and to compel the attorney for the commonwealth to elect under which count or counts he would prosecute the prisoner. The law on this subject is thus laid down by Buller, J. in the case, cited in the argument, of Young v. The King, 3 T. R. 106: " In misdemeanors, the case in Burrow shows that it is no objection to an indictment that it contains several charges. The case of felonies admits of a different consideration; but even in such cases it is no objection in this stage of the prosecution. On the face of an indictment every count imports to be for a different offence, and is charged as at different times; and it does not appear on the record whether the offences are or are not distinct. But if it appear before the defendant has pleaded or the jury are charged, that he is to be tried for separate offences, it has been the practice of the judges to quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to a juryman's trying one of the offences, though he might have no reason to do so in the other. But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecutor to make his election on which charge he will proceed." --" But if the case has gone to the length of a verdict it is no objection in arrest of judgment. If it were it would overturn every indictment which contains several counts." In the case of Kane v. The People, in the Court of errors of New York, 8 Wend. R. 211, the law is thus stated by the chancellor: " In cases of felony, where two or more distinct and separate offences are contained in the same indictment, the court, in its discretion, may quash the indictment or compel the prosecutor to elect upon which charge he will proceed; but in point of law, it is no objection that two or more offences of the same nature and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. It therefore forms no ground of a motion in arrest of judgment; neither can it be objected by way of demurrer, or on a writ of error. It is every day's practice to charge a felony in different ways in several counts, for the purpose of...