Hagood v. Commonwealth

• Decision Date: 14 January 1932
• Citation: 162 S.E. 10
• Court: Virginia Supreme Court
• Parties: HAGOOD. v. COMMONWEALTH.

162 S.E. 10

HAGOOD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

Rehearing Denied Jan. 29, 1932.

[COPYRIGHT MATERIAL OMITTED.]

HUDGINS and EPES, JJ., dissenting.

Error to Circuit Court, Mecklenburg County.

J. L. Hagood was convicted of an offense, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and BROWNING, JJ.

M. B. Booker, of Halifax, Thos. W. Ozlin, of Kenbridge, and Irby Turnbull, of Boydton, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

HOLT, J.

Milburn T. Neal was suspected of neglecting or of maltreating his wife and for that reason he was, on the morning of May 21, 1930, between the hours of twelve and one, called from hie bed and taken from his home by a group of persons who then whipped him until he vomited. Thereafter this indictment was returned:

"The Grand Jurors of the Commonwealth of Virginia, in and for the body of the County of Mecklenburg, and now attending upon the Circuit Court thereof at its August Term, 1930, upon their oaths present:

"That on or about May 21st, 1930, in the said county of Mecklenburg and within the jurisdiction of this court, John L. Hagood, Joe Hagood, Archer Thompson, Elmo Ranes, Oscar Cleaton, G. G. Martin, Bernard Cleaton and Frank Martin, composing a mob, did unlawfully and feloniously commit an assault and battery upon Milburn T. Neal, without authority of law, against the peace and Dignity of the Commonwealth."

Upon it in due course J. L. Hagood was tried, convicted, and sentenced to four years confinement in the state penitentiary. That judgment is now before us on a writ of error.

At the trial, a general demurrer was interposed, but the reasons relied upon for its support were not stated. Ordinarily this is insufficient. Jayne v. Kane, 140 Va. 27, 124 S. E. 247. But where constitutional rights are invaded they may be set up by general demurrer or otherwise, at any time, and even in this court for the first time. Adkins v. Richmond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583, 81 Am. St. Rep. 705.

For the accused, it is said that this indictment does not inform him of the "cause and nature of his accusation" (section 8, Const. 1902, Va.) and that it is impossible to tell whether it is framed under section 4532 of the Code, which provides for the punishment of rioters, or under what is commonly known as the "Lynch Law." See Acts of 1928 at page 716, c. 213.

It is of course necessary for an indictment to set forth all of the essential elements of the crime, and, if any of them are omitted, it is fatally defective. If those things there charged may be true, and if the accused may still not be guilty, it is insufficient.

This is everywhere conceded and is the unquestioned law of Virginia, and so it is not necessary for us to buttress by authority an undisputed proposition. Of course, when every fact necessary for conviction appears, that is enough, and it likewise is sufficient if they appear by necessary implication.

As we shall hereafter see, this indictment follows the language of the statute.

"The indictment pursues the language of the statute; and this is generally sufficient. The rule laid down by the authorities is, if every fact necessary to constitute the offense is charged or necessarily implied by following the language of the statute, the indictment will undoubtedly be sufficient." Helfrick v. Commonwealth, 29 Grat. (70 Va.) 844, 845.

If there was any uncertainty in the mind of the defendant, that could have been cleared up by a bill of particulars; but he did not ask for it. Such a bill is no substitute for an indictment, and cannot make one that is bad good; but it may supplement it and make certain that which had theretofore been stated only in general terms.

"The indictment, of course, must charge the offense, and if it fails to give the information necessary to enable the defendant to concert his defense, such information may be supplied by a bill of particulars; but if the offense is not charged in the indictment, the defect cannot be supplied by a bill of particulars. A bill of particulars may supply the fault of generality or uncertainty, but not the omission of an essential averment of the indictment." Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 659.

As was said in that case, whenever the indictment is comprehensive enough to embrace the offense charged but not specific enough to give the information to which the defendant is entitled, a bill of particulars should be called for, and that is this case.

The defendant Is charged with being one of a "mob, " and in that capacity with feloniously assaulting Neal.

We need not concern ourselves with varying definitions of a "mob." That is set out with certainty in the act of 1928, wherein it is declared in its first section "that a collection of people, assembled for the pur-pose and with the intention of committing an assault and/or battery upon any person and without authority of law, shall be deemed a 'mob' for the purpose of this act."

Section 3 then goes on to provide:

"Any and every person composing a 'mob, ' which shall commit an assault and/or battery upon any person without authority of law, shall be guilty of a felony, and upon conviction, shall be confined in the penitentiary for not less than one year nor more than ten years."

An elaboration in the indictment of these express statutory provisions would, be to darken counsel. They are too plain for argument, and could not possibly have been misunderstood. The accused will be presumed to have known of them, and of course this court must take cognizance of general state statutes. Moreover, the indictment upon its face charges a felony, and so primarily was not an indictment for a simple assault, while rioters under said Code section 4532, are guilty only of a misdemeanor where an assault is made.

It is true that in Mackaboy et al. v. Commonwealth, 2 Va. Cas. (4 Va.) 268, the court said that it was not sufficient to merely charge one with being a "rioter" without also stating facts which in law constitute a riot; but there is this vital difference between that case and the one in judgment. The statute itself has written into it just what a mob is. In the one case it would be necessary to descend to particulars to state who is a "rioter"; in the other, that necessity is supplied by the statute which defines a "mob" in the act which creates the offense.

Under our racial integrity laws, it is a crime for a white man to marry a negro woman, and an indictment which charged such an act would be sufficient. It would not be necessary to go further and state who, in contemplation of law, are colored persons. There also the definition of a colored person is supplied by statute. Acts 1930, p. 96, c. 85.

The claim that no crime is charged, or that one is charged in terms too vague to be intelligible, is without merit. Further elaboration is unnecessary. We think it perfectly plain that the indictment deprives the accused of no constitutional right and is amply sufficient.

Objection is also made to the admissibility in evidence of statements made by members of the mob at the time of the whipping, to the effect that Neal had run his wife away from home and put her in a Catholic institution in Norfolk. All that was then said and done was part of the res gestæ and competent. Wharton on Evidence, § 258; R. Co. v. Gordon, 21 How. St. Tr. 542. Moreover, the statute made it necessary to prove the intent with which the mob had gathered, and this evidence of its purpose is cogent and con vincing. Since these charges had been made, it was but fair to Neal that he should have been permitted to deny them.

Objection is also made to the rejection of instruction Y, which reads as follows:

"The court instructs the jury that, if they believe from the evidence that the accused took no part in assembling the mob which assaulted Neal, and that in going with the crowd to Neal's and doing what he did there, he was moved by his friendly relations with Neal and his desire to serve him as far as he could, they should find him not guilty."

This the court rejected because it was of opinion that the matter there dealt with had been covered by instructions A-1 and B-1, already given. They read as follows:

"The court instructs the jury that, in order to find the accused guilty as charged in the indictment, they must believe beyond any reasonable doubt, (1) that the accused acted in conjunction with others in assembling a collection of peo...