Henson v. Com.

• Decision Date: 12 June 1967
• Court: Virginia Supreme Court
• Parties: Jefferson HENSON, Jr. v. COMMONWEALTH of Virginia.

Page 346

155 S.E.2d 346

208 Va. 120

Jefferson HENSON, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 12, 1967.

Edgar K. Wells, Jr., Williamsburg, for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen., (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

We have the question whether Henson can now attack his conviction of robbery and 40-year sentence on the ground that the indictment charged only attempted robbery. If so, we must set aside the conviction and sentence because the maximum punishment for attempted robbery is 20 years (Va.Code Ann. § 18.1--16 (Repl. vol. 1960)).

Henson was brought before the Juvenile and Domestic Relations Court of the City of Williamsburg on the following charge, set forth in a petition to that court:

'* * * that within the said City * * * of Wmsbg. Jefferson Henson, Jr., did, on the 11th day of May, 1965, unlawfully & feloniously on one, Susanne K. Sherman, with a brass candlestick & vaccum (sic) cleaner, with which he, the said Jefferson Henson, Jr. was then and there armed, and also with other actual violence, did make an assault & battery by striking & beating the said Susanne K. Sherman, with intent the moneys, goods, & chattels of her the saie Susanne K. Sherman, from the person & against the will of her, the said Susanne K. Sherman, by force & violence, and Did unlawfully, feloniously & violently take, steal, & carry away against the peace & dignity of the Commonwealth.' (Emphasis supplied)

After a hearing the Juvenile Court certified Henson for criminal proceedings in the Circuit Court of the City of Williamsburg and the County of James City. In its certification order the court used the same words set forth in the petition to describe the crime with which Henson was charged.

Subsequently the grand jury returned this indictment against Henson:

'The Grand Jurors of the Commonwealth of Virginia, in and for the body of the said City and County and now attending the Circuit Court for the said City and County at its October 1965 term, upon their oaths do present that JEFFERSON HENSON, JR., on the 11th day of May, 1965, in the City of Williamsburg, Virginia, in and upon one Susanne K. Sherman, with certain dangerous weapons, to-wit: a brass candlestick holder and a vacuum cleaner, and also with other actual violence, did make an assault, With intent the moneys, goods and chattels of her the said Susanne K. Sherman from the person and against the will of her the said Susanne K. Sherman by force and violence, and by assaulting and putting her in bodily fear and danger of her life, To steal, take and rob, against the peace and dignity of the Commonwealth.' (Emphasis supplied)

It should be noticed that the indictment varied from the petition to the Juvenile Court and the certification order in that the indictment omitted the words 'did unlawfully, feloniously & violently take, steal, & carry away'. So the indictment charged only attempted robbery. Admittedly, neither the circuit Judge nor prosecuting or defense counsel was aware of the omission of those words in the indictment until after the Judge had found Henson guilty of robbery.

Henson was brought to trial before the Circuit Court on the indictment already mentioned, and also on indictments charging attempted murder and felonious assault. Henson was represented at the trial by the court-appointed counsel who had represented him in the Juvenile Court and who prosecutes this appeal. Before arraignment the court nol-prossed the charge of attempted murder on motion of the attorney for the Commonwealth. Shortly thereafter the court asked Henson: 'You understand that you are charged here this morning on two charges, one is of felonious assault and the other is a robbery by force of arms. Do you understand that?' Henson answered: 'Yes, sir'. The clerk read the indictment we have quoted above, as well as the indictment for felonious assault. Henson pleaded not guilty to each indictment and waived trial by jury.

The Commonwealth introduced evidence to prove that Mrs. Sherman was assaulted in her home in Williamsburg on the afternoon of May 11, 1965, struck with a candlestick holder and vacuum cleaner, and left unconscious with critical brain damage. A witness saw Henson, dressed in an army fatigue uniform, near Mrs. Sherman's home on that afternoon. A fatigue cap was found in the home shortly after the assault. An FBI agent identified fingerprints on a glass in the home as being Henson's fingerprints. In a signed statement admitted in evidence, Henson confessed he had beaten Mrs. Sherman and had taken about $60 out of a billfold in her pocketbook. Henson's counsel introduced no evidence.

After hearing argument the court announced its verdict: 'Mr. Hansen, you may stand up.--The Court finds you guilty of robbery by striking and beating as charged in the indictment.'

The court dismissed the charge of felonious assault as a lesser offense included in the charge of robbery. It deferred sentencing Henson for robbery until November 4, 1965, so that the court might receive and consider the probation officer's report. The court then overruled the motion of Henson's counsel to set aside the verdict, ¹ and continued the case until November 4.

The court held a hearing on the probation officer's report, apparently on November 4, and the fixing of the sentence was continued until November 17. At the beginning of the hearing on November 17, the court reminded Henson's counsel that at about the time of the hearing on the probation officer's report 'we learned that the indictment failed to state that he did in fact take the money'. (The record does not disclose who discovered the defect in the indictment.) The court then asked Henson's counsel: 'Now that you have had an opportunity to look into the matter, what action do you wish to take?' Henson's counsel answered: 'I'm taking * * * no action. It was pointed out to the Court that the verdict rendered was inconsistent with the indictment.'

In the colloquy that followed, the court referred to the fact that it had advised Henson before arraignment that he was charged with robbery. The court indicated that if Henson's counsel would renew his former motion to set aside the verdict, assigning as reason therefor the variance between the indictment and verdict, it would consider setting the verdict aside; but that the court would not set the verdict aside on its own motion. Nevertheless Henson's counsel advised the court 'We'll let the record stand'.

The court undertook to advise Henson about the variance between the indictment and the verdict. In the course of its remarks, the court said to Henson:

'Now, I want you to understand, sir, that your attorney is doing something that is somewhat unusual and I think I see his reason for doing it but--it's a matter, as I say, basically trial tactics. I can't expect you to judge whether the tactics are good or bad because I myself am unable to judge whether they are good or bad but I want you to understand this has been done and I give you now the opportunity, sir, if you wish that I will appoint some other lawyer with whom you may confer. Mr. Hensen, do you wish me to appoint any other lawyer or are you satisfied with the--with the trial tactics which have been adopted by your Court appointed counsel.'

Henson replied 'I'm satisfied with Mr. Wells'.

The court then asked Henson again whether he understood 'the motion was not made to set aside the finding you guilty of robbery although the indictment failed * * * to so charge * * *' Henson replied: 'Sir, I don't understand what you are talking about. I ain't been up here, you know, before. I mean--this is--this is the first time I ever been up in--and I don't really understand.'

The court then told Henson in effect that he could not be expected to understand legal technicalities, but the court was asking him whether he understood '(t)hat the indictment upon which you were arraigned and upon which you were tried did not state that you did in fact take the money * * *'; but 'that you have been convicted of robbery which implies that you did take the money'. Henson answered: 'Yes, sir'.

The court then found Henson 'guilty of robbery by striking and beating' and sentenced him to 40 years in the penitentiary. Henson's counsel made no further motion in the trial court.

In his petition for appeal, counsel asked us to remand the case to the Circuit Court 'for verdict and sentence consistent with the crime as charged in the indictment'. At oral argument, he asked us in the alternative (if we refuse the prayer of the petition), to remand the case for a new trial on the indictment.

Henson cannot successfully contend that the conviction order from which he appeals is void; nor can he successfully contend that he was denied any constitutional right at his trial. In Cunningham v. Hayes, 204 Va. 851, 134 S.E.2d 271 (1964), we held that a conviction of a higher crime than charged in an indictment was not void, but only voidable. We held also that the requirement for indictment was not constitutional, but only statutory (Va.Code Ann. § 19.1--162 (Repl. vol. 1960)).

Hayes was indicted for manslaughter and convicted of murder. As we noted in the opinion, however, 'the court, the attorney for the Commonwealth, Hayes and his counsel understood that the trial was for murder'. Hayes was therefore apprised of 'the cause and nature of his accusation' in keeping with the guarantee of Article I, § 8, of the Constitution of Virginia. In this case, Henson was advised that he was being tried for robbery, and all persons involved in the trial proceeded on the assumption he was being tried for robbery--the crime of which he was accused in the Juvenile Court.

Cunningham v. Hayes, supra, came to us on appeal from the granting of a petition for a writ of habeas...