Garnett v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: WHITTLE
• Citation: Garnett v. Commonwealth, 117 Va. 902, 83 S. E. 1083 (1915)
• Decision Date: 12 January 1915
• Parties: GARNETT et al. v. COMMONWEALTH.

83 S.E. 1083

117 Va. 902

GARNETT et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 12, 1915.

1. Indictment and Information (§ 147^*)— Sufficiency—Caption.

Where the second count of an indictment, when read in connection with the caption, showed the venue, swearing of the grand jury, and in what court the indictment was found, it was not demurrable, though standing alone, independent of the counts on which defendant was acquitted, it failed to show these matters.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 490-494; Dec. Dig. $ 147.*]

2. Criminal Law (§ 424*)— Admissions—Admissibility— Codefendants.

Declarations in the nature of admissions, made by the declarant, in the absence of his former associate in crime, after consummation I of the common enterprise, are ordinarily admissible only against the declarant, and not against his former associate.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.*]

3. Witnesses (§ 71*)—Competency—Examining Magistrate.

That a witness was the justice of the peace before whom defendants were originally cried did not render him incompetent to testify.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 185; Dee. Dig. § 71.*]

4. Criminal Law (§ 778*)—Instructions-Burden of Proof.

An instruction, in a prosecution for entering a dwelling without breaking in the nighttime with intent to steal, that when the commonwealth has shown the unlawful entry the burden is on accused to prove that his entry was for a lawful purpose, was erroneous.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.*]

5. Criminal Law (§ 829*)—Refusal of Instructions—Repetition.

The refusal of instructions substantially covered by those given was not error.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]

Error to Circuit Court, King William County.

Brooking Garnett and another were convicted of entering a dwelling house without breaking, with intent to steal, and bring error. Reversed.

Isaac Diggs, of Richmond, for plaintiffs in error.

The Attorney General, for the Commonwealth.

WHITTLE, J. The indictment against the plaintiffs in error, Brooking Garnett and John Cosby, contained three counts. The first count charged the breaking and entering of the dwelling house in question in the nighttime with intent to steal; the second, the entering without breaking with similar intent; and the third, the larceny of certain money alleged to have been found in the dwelling house.

There was a demurrer to the indictment, and to each count thereof, which the court overruled. Thereupon the accused were jointly tried, and the jury found them not guilty as charged in the first and third counts, but guilty of the felony charged in the second count, and fixed their punishment at 3 1/2 years in the penitentiary.

1. The first assignment of error questions the court's action in overruling the demurrer to the second count of the indictment; the grounds of demurrer being that, standing alone (the parties having been acquitted on the first and third counts), the second count is defective, in that it does not show the venue, or the swearing of the grand jury, or in what court of the commonwealth the indictment was found. All these objections are removed when the count is read in connection with the caption, which applies to the indictment as a whole, and to each countthereof. Wright's Case, 82 Va. 183, 185; Robinson's Case, 88 Va. 900, 14 S. E. 627.

2. The next assignment of error is to the admission by the court, over the objection of the defendants, of declarations in the nature of admissions alleged to have been made by Brooking Garnett, in the absence of John Cosby, after the common enterprise in which defendants were charged to have been engaged had been consummated.

The general rule in such case is that such declarations are only admissible against the declarant, and are not competent evidence against his former associate. Hunter's Case, 7 Grat (48 Va.) 641, 56 Am. Dec. 121; Jones' Case, 31 Grat. (72 Va.) 836; Oliver's Case, 77 Va. 590.

3. The court did not err in admitting the evidence of the justice of the peace before whom the parties were originally tried. State v. Duffy, 57 Conn. 525, 18 Atl. 791; 3 Wlgmore on Ev. § 1909.

4. The court, over the objection of the accused, gave instruction 3, as follows:

"If the jury believe from the evidence that the accused entered the dwelling house of Easter Hill, in the nighttime, with intent to commit larceny, without breaking, then he is guilty of the felony charged in the second count of the indictment. When the commonwealth has shown that an unlawful entry was made in a dwelling house in the nighttime, the presumption is that the entry was made for an unlawful purpose, and the purpose may be inferred from the surrounding facts and circumstances, and then the burden is upon the accused to prove to the satisfaction of the jury that his entry was for a lawful purpose."

The...