Falden v. Commonwealth

• Decision Date: 14 January 1937
• Citation: 189 S.E. 326
• Court: Virginia Supreme Court
• Parties: FALDEN. v. COMMONWEALTH.

189 S.E. 326

FALDEN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1937.

GREGORY, J., dissenting.

Error to Corporation Court of Danville; Henry C. Leigh, Judge.

Robert C. Falden was convicted under an indictment charging that he and others conspired to rob a United States mail truck, and he brings error.

Reversed and remanded with direction to dismiss the indictment.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Carter & Williams and Margaret L. Carter, all of Danville, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Ralph H. Ferrell, Jr., of Richmond, for the Commonwealth.

CAMPBELL, Chief Justice.

The purported indictment upon which the accused was arraigned, tried, and convicted reads as follows:

"Commonwealth of Virginia,

"City of Danville, To-wit:

"In the Corporation Court of Danville.

"The Jurors of the Commonwealth of Virginia, in and for the body of the City of Danville, and now attending said Court at its November term, in the year 1935, upon their oaths present that Eva Harris, Roland Wilbum Averett and Robert Cornelius Falden on the-- day of October in the year 1935, in said City, Unlawfully and feloniously combine, conspire and confederate together for the purpose of robbing a certain United States mail truck, in the city aforesaid, against the peace and dignity of the Commonwealth."

The punishment of the accused was fixed by the jury at three years' confinement in the penitentiary. Eva Harris and Roland Averett, as shown by the indorsement upon the back of the purported indictment, pleaded guilty and received a ten-year suspended sentence.

In the main, it was upon the evidence of Eva Harris and Roland Averett that the Commonwealth relied for a conviction of the accused.

Before the entry of a plea of not guilty, the accused filed a plea in bar of the pending indictment. The plea alleged that on the 15th day of January, 1936, the accused was convicted of "an attempt to commit the crime of robbery upon one Henry C. Morris, by the presentation of a deadly weapon for the purpose of robbing the said Morris of United States currency of the value of $----, and one lot of United States mail of unknown value." The plea then further alleged that the conspiracy with which he is now charged is in fact and truth a conspiracy to commit the identical robbery for which attempt he has already been convicted.

The court rejected the plea and this action is assigned as error.

In view of our ultimate conclusion, it is unnecessary to consider this assignment of error.

The charge against the accused is predicated upon section 4483b of the Code. That section provides:

"If any person shall conspire or confederate or combine with another in the Commonwealth of Virginia to murder, rape, rob or kidnap any person or to burglarize or to break and enter or to maliciously burn any building, either within or without the Commonwealth of Virginia, he shall be guilty of a felony and shall be confined in the penitentiary for a period of not less than one nor more than ten years."

The second assignment of error is that the evidence is not sufficient to sustain a conviction.

In the brief of the Attorney General it is said: "One cannot fail to state, after reading this record, that the testimony of the witnesses is very contradictory."

In our opinion, the evidence of the two witnesses for the Commonwealth, as shown by the record, is not only contradictory but insufficient to warrant a conviction of the accused. Both of them stated that no actual agreement to commit an offense was ever entered into by them and the accused. To constitute the crime of conspiracy there must be an agreement to commit an offense.

The accepted definition of "conspiracy" is: "Conspiracy is an agreement between two or more persons by some concerted action to commit an offense. * * *" Minor's Synopsis of Crimes and Punishment, p. 160.

Of course it follows that if the Commonwealth has failed to prove an agreement to commit an offense which is properly charged in the indictment, the prosecution falls of its own weight. The result of this conclusion would ordinarily lead to a reversal of the judgment and a remand of the case to the lower court for a new trial. But a more serious question confronts us than a reversal of the judgment. Though the question is not raised by counsel for the accused, we feel impelled, by reason of the decisions of this court and the gravity of the situation which confronts the accused, to raise the question as to the validity of the indictment upon which the accused has been tried and convicted. That it is our duty to do so is declared in Old v. Commonwealth, 18 Grat. (59 Va.) 915. In that case Judge Moncure said: "I take it to be a true rule of law, that wherever the facts stated in an indictment or other accusation may all be true, and yet the accused not be guilty of the offence intended to be charged against him, he cannot be thereon lawfully convicted of such offence; and that, I think I have shown, is the case here."

In Randall v. Commonwealth, 24 Grat. (65 Va.) 644, it was held that when the indictment is fatally defective the judgment may be reversed by the appellate court, though no motion in arrest of judgment was made in the lower court. To the same effect is our holding in Matthews v. Commonwealth and Garner v. Commonwealth, 18 Grat.(59 Va.) 989; Rose's Case, 116 Va. 1023, 1027, 82 S.E. 699.

The fatal defect in the indictment is that it does not charge a crime. The offense which was intended to be charged was robbery. The alleged offense charged is a conspiracy entered into between the accused and others for the purpose of robbing a certain United States mail truck.

There is in Virginia no such crime as statutory robbery.

In Davis's Criminal Law, p. 199, "robbery" is...