Flanary v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: BURKS
• Citation: Flanary v. Commonwealth, 133 Va. 665, 112 S.E. 604 (1922)
• Decision Date: 20 June 1922
• Parties: FLANARY . v. COMMONWEALTH.

112 S.E. 604

FLANARY .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 20, 1922.

Error to Circuit Court, Scott County.

Nathan Flanary was convicted of unlawfully transporting ardent spirits, and he brings error. Affirmed.

W. S. Cox, of Gate City, for plaintiff in error.

John R. Saunders, Atty. Gen., and J. D. Hank, Jr., Asst. Atty. Gen., for the Commonwealth.

BURKS, J. The plaintiff in error was convicted of unlawfully transporting ardent spirits, upon an indictment which charged that the offense was committed on the—— day of—— in the year nineteen hundred and——. There was no demurrer or other objection to the indictment until after a verdict of conviction, which was abundantly supported by the testimony. The plaintiff in error then moved to set aside the verdict, as contrary to the law and the evidence, but the motion was overruled, and this is the only error assigned.

The motion came too late. Section 4879 of the Code provides that—

"Judgment in any criminal case shall not be arrested or reversed upon any exception or objection, made after a verdict, to the indictment or other accusation, unless it be in violation of the Constitution."

The revisors, in their note to this section, say:

"As this section stood before the revision, it read as follows: 'Judgment in any criminal case, after a verdict, shall not be arrested or reversed upon any exception to the indictment or other accusation, if the offense be charged there with sufficient certainty for judgment to be given thereon, according to the very right of the case.' The new language is intended to be broader than the old, preserving, however, as it must, constitutional rights."

Certainly the language of the indictment is sufficiently certain to enable the court to give judgment thereon "according to the very right of the case, " and does not violate any constitutional right of the accused. It is true, as claimed, that he had the right to demand "the cause and nature of his accusation, " but he made no such demand by demurrer, objection, motion to quash, calling for a bill of particulars, or in any other manner, and the indictment accurately charged him with the offense in every particular except as to the date of the commission of the offense. If this objection had been raised, it could have been corrected at the bar by the prosecuting attorney on mere motion. Code, § 4876, provides:

"An amendment of any defect in an indictment or presentment for a misdemeanor that does not change the...