Falden v. Commonwealth

• Decision Date: 14 January 1937
• Citation: 189 S.E. 329
• Court: Virginia Supreme Court
• Parties: FALDEN. v. COMMONWEALTH.

189 S.E. 329

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 assaulted and attempted to rob a person named, and he brings error.

Reversed.

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, C. J.

The accused was twice tried in the corporation court of the city of Danville, upon this indictment:

"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 Robert Cornelius Falden on the 2nd day of November in the year 1935, in said City, in and upon one Henry Clay Morris feloniously and maliciously did make an assault, and him, the said Henry Clay Morris, did then and there feloniously put in bodily fear and danger of his life, by the presentation of a deadly weapon, to-wit, an iron pipe, and United States Currency to the value of $___, the exact amount unknown to the grand jurors, and one lot of United States mail, the value of same unknown to the grand jurors, all of said property being the property of the United States, being at the time aforesaid in the lawful possession of the said Henry Clay Morris, in the city aforesaid, from the custody and control and in the presence of the said Henry Clay Morris, in the city aforesaid, feloniously and violently did attempt to steal, take and carry away, against the peace and dignity of the Commonwealth."

Upon the first trial the accused was found guilty by a jury and his punishment fixed at ten years' confinement in the penitentiary. Upon motion of accused, the verdict was set aside and a new trial awarded. Upon the second trial he was convicted and his punishment fixed at nine years in the penitentiary. The motion of the accused to set aside the verdict as contrary to the law and the evidence was overruled and he was sentenced accordingly.

The motion of the accused to set aside the verdict as contrary to the law is well founded.

Upon the motion of the attorney for the Commonwealth, and over the objection of the accused, the court gave the following instructions:

"No. 1. The Court instructs the jury that the defendant, Falden, is being tried for an attempt to rob the United States Mail Truck, as charged in the indictment.

"The Court further instructs the jury that, an attempt to commit a crime is composed of two elements:

"1. An intent to commit the crime.

"2. A direct ineffectual act done towards its commission.

"Therefore if you believe from the evidence beyond a reasonable doubt that the defendant, Falden, did on the 2nd day of November, 1935, attempt to rob the United States Mail Truck, as charged in the indictment, by the presentation of an iron pipe and that such pipe was a deadly weapon, you should find him guilty and fix his punishment at confinement in the penitentiary not less than one nor more than ten years.

"No. 2. The Court further instructs the jury that the crime of robbery consists in the theft of property from the person, or in the presence of the person having lawful charge of same, accomplished by violence, or putting in fear, or the presentation of a deadly weapon.

"No. 3. The Court instructs the jury that if they do not believe from the evidence beyond a reasonable doubt that the defendant attempted to rob the mail truck by the presentation of a deadly weapon, but do believe from the evidence beyond a reasonable doubt that he did attempt to rob by threats or putting in fear by other means, you should find him guilty and fix his punishment by confinement in the penitentiary not less than one nor more than five years or in the discretion of the jury by confinement in jail not to exceed twelve months."

In the companion case of Falden v. Commonwealth (Va.) 189 S.E. 326, this day decided, we held that Falden, the accused, could not be found guilty of a conspiracy to rob a mail truck, the property of the United States. The crime of robbery is fully discussed in the opinion in that case, and it is unnecessary to again enter upon a discussion of the same, further than to say that robbery is a crime against the person. In the indictment, supra, this principle of law is recognizedand the accused is specifically charged with an attempt to commit the crime of robbery against the person of one Henry Morris.

The trial court correctly instructed the jury, in the second instruction, in strict conformity with the holding of this court in the conspiracy case against Falden. It follows, therefore, that the court erred when in instruction No. 1 it told the jury, contrary to the charge in the indictment and contrary to the law, that the accused "is being tried for an attempt to rob the United States Mail Truck." Then, too, instruction No. 1 is erroneous for the reason that it tells the jury that if they believe from the evidence, beyond a reasonable doubt, that the accused "did on the 2nd day of November, 1935, attempt to rob the United States Mail Truck, as charged in the indictment, by the presentation of an iron pipe and that such pipe was a deadly weapon, " then they should find him guilty.

Instruction No. 3 is erroneous for the reason that it tells the jury they can find the accused guilty if they believe from the evidence beyond a reasonable doubt that the accused did attempt "to rob by threats or putting in fear by other means."

The allegation in the indictment is putting Morris in fear by the presentation of a deadly weapon.

It is also assigned as error that the court refused to give instruction A as requested by the accused. That instruction reads:

"The Court instructs the jury that if they believe from the evidence that the driver Morris parted with possession of the truck and its contents willingly and in accordance with a previous plan to which he was a party and not because of any...