Hagood v. Commonwealth

• Decision Date: 14 January 1932
• Citation: 157 Va. 918
• Court: Virginia Supreme Court
• Parties: J. L. HAGOOD v. COMMONWEALTH.

Page 918

157 Va. 918

J. L. HAGOOD v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 14, 1932.

Present, Campbell, C.J., and Holt, Epes, Hudgins and Browning, JJ.

1. CRIMINAL LAW — Demurrer to the Indictment — Reasons Relied upon not Stated — Constitutional Rights Invaded — Case at Bar. — In the instant case, an indictment for assault and battery, at the trial a general demurrer was interposed but the reasons relied upon for its support were not stated. Ordinarily this is insufficient. But where constitutional rights are invaded they may be set up by general demurrer or otherwise, at any time, and even in the Supreme Court of Appeals for the first time.

2. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Sufficiency of Indictment — Indictment Must Set Out Essential Elements of the Crime — Necessary Implication. — It is 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. When every fact necessary for conviction appears that is enough, and it likewise is sufficient if they appear by necessary implication.

3. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Indictment Following Statute — Fact Necessary to Constitute the Offense Charged. — 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.

4. CRIMINAL LAW — Bill of Particulars — Function of Bill of Particulars. — An indictment 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.

5. CRIMINAL LAW — Bill of Particulars — When Defendant Entitled to a Bill of Particulars. — 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.

6. ASSAULT AND BATTERY — Indictment — Defendant Charged with Being One of a "Mob" which Assaulted Another — Statutory Definition of "Mob" — "Lynch Law" (Acts 1928, page 715). — In the instant case defendant was charged with being one of a "mob" and in that capacity with feloniously assaulting another. The "lynch law" (Acts 1928, page 715) defines a mob. Therefore, an elaboration in the indictment of these statutory provisions defining a mob is not necessary, as they are too plain for argument and could not possibly have been misunderstood.

7. ASSAULT AND BATTERY — Indictment — Defendant Charged with Being One of a Mob which Assaulted Another — "Lynch Law" (Acts 1928, page 715) — Accused Presumed to Know the Statute. — In the instant case accused was charged under the "lynch law" (Acts 1928, page 715) with being one of a "mob" which assaulted another.

Held: That the accused would be presumed to have known of the statutory provisions in Acts 1928, page 715, defining a mob.

8. JUDICIAL NOTICE — Supreme Court of Appeals — General Statutes. — The Supreme Court of Appeals must take cognizance of general State statutes.

9. ASSAULT AND BATTERY — "Lynch Law" (Acts 1928, page 715) — Sufficiency of Indictment — Case at Bar. — In the instant case accused was charged under the "lynch law" (Acts 1928, page 715) with being a member of a "mob" which feloniously assaulted another. The indictment upon its face charged a felony and so primarily was not an indictment for a simple assault, and rioters under section 4532 of the Code of 1919 are guilty only of a misdemeanor where an assault is made.

Held: That the claim that no crime was charged, or that one was charged in terms too vague to be intelligible, is without merit; that the indictment was perfectly plain and deprived the accused of no constitutional right and was amply sufficient.

10. ASSAULT AND BATTERY — Mob — Prosecution Under the "Lynch Law" (Acts 1928, page 715) — Res Gestae — Case at Bar. — In the instant case accused was charged under the "lynch law" (Acts 1928, page 715) with being a member of a "mob" which feloniously assaulted another. Objection was made to the admissibility in evidence of statements made by a member of the mob at the time of the assault to the effect that the person assaulted had run his wife away from home and put her in an institution.

Held: That all that was then done and said was part of the res gestae and competent.

11. ASSAULT AND BATTERY — Mob — Prosecution Under the "Lynch Law" (Acts 1928, page 715) — Instruction — Motives of Accused. — In the instant case accused was charged under the "lynch law" (Acts 1928, page 715) with being a member of a "mob" which feloniously assaulted another. An instruction was offered and rejected by the court to the effect that if accused took no part in assembling the mob, and that in going with the crowd to the home of the person assaulted and doing what he did there, he was moved by his friendly relations with the person assaulted and his desire to serve him as far as he could, the jury should find the accused not guilty. The court, however, instructed the jury to the effect that in order to find accused guilty he must have acted with others in collecting the mob, intending that it should commit an assault and battery; and if the jury believed that the accused took no part in forming the mob and did not join them with the intention of participating in making an assault, and had no intention of aiding, abetting, or encouraging the assault, and took no part therein, they should find him not guilty.

Held: That there was no error in rejecting the instruction as it was covered by other instructions.

12. ASSAULT AND BATTERY — Mob — Prosecution Under the "Lynch Law" (Acts 1928, page 715) — Instruction — Motives of Accused. — In the instant case accused was charged under the "lynch law" (Acts 1928, page 715) with being a member of a "mob" which feloniously assaulted another. An instruction was offered and rejected by the court to the effect that if accused took no part in assembling the mob, and that in going with the crowd to the home of the person assaulted and doing what he did there, he was moved by his friendly relations with the person assaulted and his desire to serve him as far as he could, the jury should find the accused not guilty. Accused, by his own admission, went with the mob knowing its purpose. He called the person assaulted from his home and delivered him to the mob, and stood by without protest while the person assaulted was whipped until the whipping reached a point at which it became brutal.

Held: That there was no error in rejecting the instruction, as it was unauthorized by the evidence.

13. CRIMINAL LAW — Presence of Accused — Necessity. — A person tried for a felony must be personally present during the trial.

14. CRIMINAL LAW — Presence of Accused — Necessity — Consideration of Instructions in Chambers. — The consideration of instructions in chambers is well-nigh the uniform practice in this State, and is entirely unobjectionable. When this is done the judge usually indicates to counsel what he expects to do, all of this in the absence of the accused. He has no more constitutional right to be present then than he would have the right to be present at the judge's home should he continue the investigation and consideration of this matter there. Instructions are finally given and rejected by the court and of course accused must be present at every stage of his trial.

15. CRIMINAL LAW — Presence of Accused — Necessity — Rejection of Instructions in Chambers — Invited Error. — In the instant case certain instructions asked for by the accused were tendered and considered by the judge when the court was in "recess." Technically speaking, they were neither tendered to nor refused by the court. If they were never tendered to the judge in court, then nothing that he did with them out of court could be error. Before error can be predicated upon the conduct of the judge, it must appear that the rejected instructions were requested by counsel of him, sitting as a court. If it be assumed that this was done, it must also be assumed that the instructions were rejected by him sitting as a court.

16. CRIMINAL LAW — Presence of Accused — Necessity — Rejection of Instructions in Chambers. — The fact that instructions were presented by counsel to the judge in chambers and considered by him there, and that he then indicated what he expected to do, did not make an act of the court. The error, if there be error, was invited, and "they that take the sword shall perish with the sword."

17. CRIMINAL LAW — Presence of Accused — Necessity — Rejection of Instructions for Accused in Chambers — New Trial — Case at Bar. — In the instant case instructions were tendered and considered by the judge while the court was in "recess."

Held: That a new trial was not authorized on the ground that the accused was not present when the court considered and passed upon the instructions.

18. CRIMINAL LAW — Presence of Accused — Necessity — Rejection of Instructions for Accused in Chambers — Rejected Instructions in Record — Case at Bar. — In the instant case accused asked for a new trial on the ground that he was not present when the instructions were tendered and considered by the judge in "recess" and certain instructions for accused were rejected. The rejected instructions are in the record and could have gotten there in two possible ways. They could have been given to the clerk by the judge out of court, or they could have been given to him by the judge in court. To indulge in the first presumption is to...