Hardy v. Commonwealth

• Decision Date: 26 January 1867
• Parties: HARDY AND CURRY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

58 Va. 592

HARDY AND CURRY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 26, 1867

An indictment for robbery charged that the prisoners " did make an assault" upon G, and one gold watch, & c., from the person and against the will of G, & c., " feloniously and violently did steal," & c. The jury acquitted the prisoners of the felony charged, but found them guilty of " assault and battery." On motion in arrest of judgment, held the finding valid under ch. 208, § 27 of the Code.^[a1]

At the April term 1866 of the Circuit court of Loudoun county, the grand jury found an indictment against William Hardy and Charles Curry, that they, on the 8th day of December, 1865 on one John T. Gregg feloniously did make an assault, and him the said John T. Gregg in bodily fear did feloniously put and one gold watch of the value of one hundred and seventy-five dollars, one gold watch chain of the value of twenty dollars, and four notes in currency (describing them) of the goods and chattels, notes and property of the said John T. Gregg, from the person and against the will of the said John T. Gregg then and there, to wit, & c., feloniously and violently did steal, take and carry away, against the peace, & c.

On the trial the jury found the defendants not guilty of the felony charged in the indictment, but found them guilty of an assault and battery, and assessed a fine upon each of them of two hundred and fifty dollars. The defendants thereupon moved the court to arrest the judgment, because the verdict found the defendants guilty of an assault and battery, which was no part of the charge set forth in the indictment. But the court overruled the motion, and rendered a judgment against each of the defendants for two hundred and fifty dollars. Whereupon Hardy and Curry applied to this court for a writ of error to the judgment; which was awarded.

Tucker, for the appellants.

The Attorney General, for the commonwealth.

MONCURE, P.

I have given to this case all the consideration of which I am capable and which was so justly due as well to the importance of the question involved, as to the ability and learning with which it has been argued by counsel; and yet I confess that I have found great difficulty in ariving at a result which is satisfactory to my own mind.

The case arises under the Code, page 838, chapter 208, section 27, which now, for the first time, comes up for construction by this court, and is as follows:

" If a person indicted of felony be by the jury acquitted of part, and convicted of part of the offence charged, he shall be sentenced for such part as he is convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor."

The plaintiffs in error were indicted for robbery, in the common form. The jury found them " not guilty of the felony charged in the indictment," but " guilty of an assault and battery," and assessed a fine upon each of them of two hundred and fifty dollars. They moved in arrest of judgment, because the verdict found them guilty of an assault and battery, which was no part of the charge set forth in the indictment. The Circuit court overruled the motion, and gave judgment against them for the fines and costs. Is this judgment erroneous? or, in other words, is the offence of assault and battery of which they were convicted, substantially charged in the indictment, and is it part of the offence of robbery therein charged? This is the only question we have to decide in this case, though a difficult one it certainly is. The difficulty exists in so construing the statute as, on the one hand, to give fair and full effect to the intention of the legislature, and, on the other, not to subject a party to the danger of conviction for a crime with which he was not duly charged, and concerning which he had not a full opportunity of making his defence.

At common law a count for misdemeanor could not be joined in the same indictment with a count for felony. Nor could a party indicted for felony be convicted on that indictment of a misdemeanor. The two offences were of different grades, required different modes of trial, and were followed by different judgments. This common law rule continued to prevail in Virginia even after the distinctive features between these two grades of offence, which had given rise to the rule, had been abolished or changed, and the reason of the rule had entirely ceased. The effect of this rule was that if the felony charged in the indictment was not fully proved on the trial it was necessary to acquit and discharge the accused, though there might have been the fullest proof before the jury that he was guilty of a highly criminal act, which constituted part of the offence charged against him in the indictment. To be sure he might be indicted again for the misdemeanor. But then the risk, delay, trouble and expense of this course of proceeding constituted a serious objection to it, and the question naturally arose, why not avoid this inconvenience, by authorizing a jury to convict of misdemeanor or an indictment for felony, if satisfied from the evidence that the accused is not guilty of the felony, but is guilty of misdemeanor, provided the latter be embraced in the charge contained in the indictment? The accused in such case is not taken by surprise, but may and ought to come prepared to meet the whole charge against him.

It was a rule of the common law, that while more than one offence, even though of the same grade, could not be included in the same count of an indictment, yet as it was necessary to set out all the facts constituting an offence in an indictment for it, and as those facts often in themselves are separate offences, a party might be convicted of any offence substantially charged in the indictment, provided it was of the same grade with the principal or total offence charged. So that if a party were indicted for one felony, as for example murder, he might be found not guilty of murder, but guilty of manslaughter, which is embraced in the charge. The only reason why he could not be convicted of a misdemeanor on such an indictment was the distinction, before referred to, between the two grades of offence. That distinction having been removed, and the reason for the difference in this respect thus having ceased, it remained only for the legislature to authorize a conviction for misdemeanor on an indictment for felony, wherever it could take place consistently with the ends of convenience and justice. Accordingly several legislative enactments have been made in this state on that subject, among which is section 31 of chapter 208 of the Code, page 839, which provides, that " on an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such felony; and a general verdict of not guilty upon such indictment shall be a bar to a subsequent prosecution for an attempt to commit such felony." Now an attempt to commit a felony is by statute made a felony or misdemeanor, according to the nature of the felony attempted to be committed; as may be seen by reference to the Code, p. 813, chap. 199, § 10. Section 31 of chapter 208, above recited, is very much like, though enacted prior in time to section 9, ch. 100, of 14 and 15 Vict., called Lord Campbell's Act, which took the place of section 11, ch. 85, of 1st Vict., called Lord Denman's Act. The doubts and difficulties and diversity of decision which arose under the latter act, and which led to its repeal and the enactment of the former, will appear from the cases collected in a long note in the Leading Criminal Cases, pp. 457-463; and from the case of Regina v. Bird & wife, 2 Eng. L. & E. R. 428-531, decided by the Court of Criminal Appeal; a case remarkable for the fact that the judges were divided upon the main question involved, in the proportion of eight to six, and that Lord Campbell, chief justice of the King's Bench, Jervis, chief justice of the Common Pleas, and Baron Parke were of the minority. The judges delivered their opinions seriatim, and at much length; and the argument of counsel, both before the Court of Criminal Appeal and in the earlier stages of the case, is fully reported.

These doubts and difficulties thus existing in the course of legislation and decision on the subject in England, the legislature of this state sought to avoid by two sections, which we find standing almost side by side in the Code; that is, sections 27 and 31 of chap. 208, which have already been recited verbatim. The meaning of the latter section is plain. On an indictment for felony, the accused may be convicted of an attempt to commit such felony. An intention to commit the felony charged, and the doing of any act towards its commission without actually committing it, constitute the offence of which the accused may be convicted as aforesaid Whenever, therefore, on an indictment for felony, it is proved that the accused intended to commit the felony, and did some act towards its commission, but without completely committing it, the plain duty of the jury is to convict the accused, under section 31, of an attempt to commit such felony. But suppose it is proved, on such an indictment, that the accused committed some act therein stated as part of the felony therein charged, which act is in itself a criminal offence, but that he did not commit the felony nor intend to commit it: what is to be done in that case? Section 27 provides for the case, and declares that he may be convicted of such act and sentenced accordingly.

Let us illustrate the matter by applying the two sections to the case of an indictment for robbery. Suppose it be proved in such a case, that the accused assaulted the person injured with intent to rob him, but failed to...