Early v. Commonwealth
| Decision Date | 19 June 1890 |
| Citation | 86 Va. 921,11 S.E. 795 |
| Parties | Early. v. Commonwealth. |
| Court | Virginia Supreme Court |
Arson—Indictment —Continuance—Attorney— Confession.
1. An indiotment which charged that defendant feloniously and maliciously set fire in the night-time to a certain warehouse, and by the burning thereof did feloniously and maliciously burn a certain dwelling-house, was not bad for duplicity, since the acts charged, though multifarious, constituted but one connected transaction.
2. Where a motion for a continuance on the ground of the absence of witnesses was denied because the court was satisfied that defendant had not diligently prepared for trial, and only sought delay, the judgment will not be disturbed.
8. A count which failed to conclude with, "against the peace and dignity of the commonwealth, " was fatally defective; but where a verdict of guilty was rendered upon a second count, which was complete, this was sufficient to sustain the judgment.
4. It is within the discretion of the court to refuse to permit defendant, at the trial, to withdraw his plea of guilty, and plead in abatement.
5. A prisoner accused of arson was informed that he had a right to be tried either in the county or circuit court, and elected to be tried in the county court, pleaded " not guilty, " and expressed a desire for immediate trial. Counsel were appointed to defend, by whose advice defendant obtained a continuance. Afterwards defendant moved to set aside his arraignment because the counsel appointed had been injured by the fire which he was accused of kindling, and because he desired to be tried in the circuit court. Held, the fact that such counsel had obtained a continuance, presumably, for better preparation, was sufficient to show that defendant was not injured, and the motion was properly denied.
6. A confession obtained upon the promise of a private detective, employed to work up the case, that the commonwealth would make it easier for the prisoner if he would tell all about the crime, was not " induced by one in authority, " and was admissible.
Error to county court, Franklin county. Mr. Hairston, for plaintiff in error.
The Attorney General, for defendant in error.
Lewis, P. At the November term, 1889, of the county court of Franklin county, the prisoner was jointly indicted with Bird Woods, William Brown, Morgan Dickinson, and Nannie Woods, for arson. The indictment was drawn under section 3095 of the Code, which, so far as it is material to the present case, enacts as follows: "If any person, in the night, maliciously burn the dwelling-house of another, or any boat or vessel or river craft in which persons usually dwell or lodge, or any jail or prison, or maliciously set tire to anything, by the burning whereof such dwelling-house, boat, vessel, or river craft, jailor prison, shall be burned in the night, he shall be punished with death; but if the jury find that at the time of committing the offense there was no person in the dwelling-house, boat, vessel, or river craft, jail or prison, the offender shall be confined in the penitentiary not less than five nor more than ten years." The indictment contains two counts. The first charges that the defendants, "in the said county, on the---day of October, in the year one thousand eight hundred and eighty-nine, in the night-time of said day, about the hour of 1 o'clock, a certain warehouse there situate, of the value of $500, the property of J. H. Binford and Giles W. B. Hale, known as 'Franklin Warehouse, ' feloniously and maliciously did set fire to, and by the burning thereof the dwelling-house of J. N. Montgomery, there situate, of the value of $700, feloniously and maliciously did burn, in the night-time aforesaid, said J. N. Montgomery, Susan Montgomery, and Mabel Montgomery being in the said dwelling-house at the time of the commission of said offense in the night-time aforesaid." The second count is like the first, except that it concludes with the words "against the peace and dignity of the commonwealth of Virginia, " which the first does not. The defendants at the same term demurred to the indictment, and to each count thereof, but the demurrer was overruled, and, upon being arraigned, they severally pleaded "not guilty." The case was thereupon continued to the ensuing term, at which term they were tried separately, found guilty, and sentenced to be hanged. The verdict in the present case was as follows, to-wit: "We, the jury, find the prisoner, George Early, guilty as charged in the second count of the within indictment, " There was a motion for a new trial, which was overruled, and, the prisoner having unsuccessfully applied to the judge of the circuit court of Franklin county for a writ of error and supersedeas, the case was brought to this court.
1. The first assignment of error is that the county court erred in overruling the demurrer. This contention is based upon the grounds (1) that the indictment is bad for duplicity; (2) that the first count does not contain the constitutional conclusion "against the peace and dignity of the commonwealth;" and (3) because it is not charged that the burning of the dwelling-house of the said J. N. Montgomery was in the night. The first of these grounds is clearly untenable. There is only one offense charged—the burning of the warehouse and dwelling-house constituting, under the statute, but one offense, and the rule is well settled that no matters, however multifarious, will operate to make an indictment double, provided that all taken together constitute but one connected charge, or one transaction. 1 Bish. Crim. Proc. (2d Ed.) § 438. As to the second point, there is no doubt but that the first count is defective, and ought to have been quashed; since each count of an indictment must be perfect in itself, the omission of the conclusion "against the peace and dignity of the commonwealth" is fatal. Carney's Case, 4 Grat. 546; Thompson's Case, 20 Grat. 724. The error of the court, however, in this particular, has not operated to the prejudice of the prisoner, for the second count is clearly good, and, ns the verdict of guilty was rendered upon that count, that is sufficient to sustain the judgment. 1 Bish. Crim. Proc. § 1011. And as to the third objection above mentioned, that has no foundation to rest upon, as the most casual reading of the indictment will show.
2. When the case was called for trial the prisoner asked leave to withdraw his plea of not guilty, entered upon his arraignment at a former term, and to plead in abatement, on the ground that the grand jury which found the indictment had not been summoned according to law; and, second-ly, because Thomas F. Hollowell, one of the grand jurors, was not a qualified juror; but the court, after hearing argument, refused the request, and the prisoner excepted. By pleading the general issue alone, a defendant has always been...
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Jones v. Cunningham
...57 S.E. 2d 109, 112-113 (1950). But see Campbell v. Commonwealth, 194 Va. 825, 75 S.E.2d 468, 472-473 (1953). 16 Early v. Commonwealth, 86 Va. 921, 11 S.E. 795, 797 (1890); Omohundro v. Commonwealth, 138 Va. 854, 121 S.E. 908, 910 (1924); Jackson v. Commonwealth, 193 Va. 664, 70 S.E.2d 322,......
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Wagoner v. Commonwealth
...until the contrary is shown.’ ” Caprino v. Commonwealth, 53 Va.App. 181, 184, 670 S.E.2d 36, 38 (2008) (quoting Early v. Commonwealth, 86 Va. 921, 925, 11 S.E. 795, 797 (1890)). “A trial court's judgment approving a jury's verdict is entitled to great weight on appeal and will not be distur......
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Campbell v. Com.
...commission of a crime. The determination of the admissibility of a confession belongs to the court and not to the jury. Early v. Commonwealth, 86 Va. 921, 11 S.E. 795; Upshur v. Commonwealth, 170 Va. 649, 197 S.E. 435. It devolves upon the trial court in the first instance before admitting ......
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Caprino v. Com., Record No. 2272-07-4.
...670 S.E.2d 36 ... 53 Va. App. 181 ... Charles CAPRINO ... COMMONWEALTH of Virginia ... Record No. 2272-07-4 ... Court of Appeals of Virginia, Richmond ... December 23, 2008 ... [670 S.E.2d 37] ... of the rulings of a court of competent jurisdiction, when brought under review in an appellate tribunal, until the contrary is shown." Early v. Commonwealth, 86 Va. 921, 925, ... 53 Va. App. 185 ... 11 S.E. 795, 797 (1890) (citing Coleman v. Commonwealth, 84 Va. 1, 7, 3 S.E. 878, 881 ... ...