Houston v. Commonwealth

• Decision Date: 16 December 1890
• Citation: 12 S.E. 385,87 Va. 257
• Parties: Houston. v. Commonwealth.
• Court: Virginia Supreme Court

87 Va. 257

12 S.E. 385

Houston.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Dec. 16, 1890.

Robbery—Indictment—Instructions.

1. An indictment which charges the felonious and forcible taking by the accused, from the person of another, of money and goods to the value specified, by violence and putting him in fear, and that such money and goods were the property of the person robbed, is a good charge of robbery at common law.

2. Under Code Va. 1887, § 3674, which provides in its first clause that "if any person commit robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of fire-arms, he shall be punished, " as therein specified, an indictment which properly sets forth the commission of a common-law robbery in the manner specified in the statute is good, since the statute does not create or define the crime of robbery, but merely regulates its punishment in certain cases.

3. Where an indictment charges defendant with robbery by presenting of fire-arms, it is proper to charge that if the jury find the defendant guilty, as charged in the indictment, they should fix his punishment at the penalties provided by the first clause of said section.

4. It is reversible error to instruct the jury that, if they believe that defendant was present aiding and abetting C. in robbing the prosecuting witness, then he is guilty as principal in the second degree, though he neither beat nor struck the person robbed, or presented fire-arms at him, nor received any portion of the goods carried away by C. as "the fruits of said robbery, " since such instruction assumes that there was a robbery, and that C. committed it, and carried off the stolen property.

Wm. M. Perkins and T. L. Massie, for plaintiff in error.

The Attorney General, for the Commonwealth.

Richardson, J. This is a writ of error to a judgment of the circuit court of Pulaski rendered on the 11th day of December, 1889, affirming the judgment of the county court of said county rendered August 8, 1889, upon an indictment jointly against Barney Cleaver and Henry Houston for the robbery of one William Meyers. The indictment, stripped of its verbiage, is "that Barney Cleaver and Henry Houston, in said county, etc., feloniously made an assault upon one William Meyers, and feloniously put him in bodily fear by presenting fire-arms, which they then and there had and held, at him, and by feloniously striking and beating him; and one silver coin, current in this commonwealth, of the denomination of one dollar, and of the value of one dollar, and other silver coins current in the commonwealth, of denominations unknown to the grand jurors, amounting in value to the sum of one dollar, three quarts of whisky, of the value of two dollars, and one pistol, of the value of two dollars, of the goods and chattels, coin and property, of the said William Meyers, from the person and against the will of the said William Meyers, then and there, to-wit, on the day and year aforesaid, feloniously and violently did steal, take, and carry away, against the peace and dignity of the commonwealth of Virginia." It may be mentioned that it appears from the record, by indorsement on the indictment in this case, that Barney Cleaver was tried, and by the jury was found guilty, as charged in the said indictment, and his term of imprisonment in the state penitentiary was fixed at five years. At the trial of Henry Houston, the county court overruled his demurrer to the indictment. Thereupon came a jury which was charged in the presence of the court by the clerk thereof, who, after reading the indictment to them, said: "And upon this indictment the prisoner has been arraigned, and has pleaded not guilty, and put himself upon the country, which country you are. It is therefore your duty to inquire if he be guilty of the felony, as charged, or not guilty. If you find him guilty of the felony, as charged in the indictment, you shall ascertain his punishment by death, or in the discretion of the jury that he be confined in the penitentiary for a term not less than eight years nor more than eighteen years. Then if you find him not guilty of the felony charged in the indictment you will inquire if he be guilty of an assault and battery; and if you find him guilty of an assault and battery you should ascertain his punishment so that the same be by fine not less than five dollars. But if you should find him not guilty of either of the aforesaid charges you will say so, and no more, and barken to his cause." To this charge the prisoner excepted, and the court certified the exception. At the trial the commonwealth asked the court to give to the jury the following instruction, to-wit: " If the jury believe from the evidence be-yond a reasonable doubt that the prisoner Henry Houston was present aiding and abetting Barney Cleaver in robbing the prosecutor William Meyers as charged in the indictment, then he is guilty as principal in the second degree, although the jury may further believe that the prisoner neither beat nor struck said Wm. Meyers, nor presented fire-arms at him, nor that the prisoner, after the robbing, received any portion of the goods or articles carried away by said Barney Cleaver, as the fruits of said robbery;" to which the prisoner objected, but the court overruled the objection, and the prisoner excepted. After the jury had heard all the evidence, had received said instruction, had heard the arguments of counsel, and had retired to their room to consider of their verdict, they returned into court and propounded to the court the following question: "Can we find the prisoner guilty and assess his punishment at less than eight years in the state penitenitary;" to which the court replied by reading to the jury section 3674 of the Code of 1887, from the beginning to the words "eighteen years;" and in the same connection remarked to the jury that if they found him not guilty of the felony, and they thought him guilty of an assault and battery, they could punish him by a fine not less than five dollars; to which action of the court the prisoner did not except at the time, but after verdict did except, and the court certified the exception. The jury by their verdict found the. prisoner guilty as charged in the indictment, and fixed his imprisonment at eight years in the penitentiary of Virginia. Thereupon the prisoner moved in arrest of judgment, on the ground that one H. S. Dudley, who was a member of the venire facias, and a member of the jury which tried him, was also a member of the grand jury that found the indictment against him, and the prisoner presented the records establishing these facts. And on its pari the commonwealth presented the affidavit of said H. S. Dudley, to which the prisoner objected, to the effect that, when sworn upon his voir dire, and as a juror to try the prisoner, he had no recollection of having been one of the grand jury that found the indictment, nor of the evidence before the grand jury in relation to the robbery, but that since the trial he does recall the fact that he was a member of the grand jury, but did not remember the evidence before that body. But the court overruled the prisoner's motion in arrest of judgment, to which action of the court the prisoner excepted, and this exception was also certified by the court. And the county court, having entered judgment according to the finding of the jury, the prisoner obtained a writ of error thereto from the judge of the said circuit court, and the judge of the circuit court heard the case in vacation, and affirmed the judgment of the county court, and thereupon the prisoner obtained a writ of error from one of the judges of this court.

Having examined the record with the care due to the importance of the case, we proceed to examine the grounds relied upon by the plaintiff in error for the reversal of the judgment complained of. The first three assignments of error—the refusal of the county court to sustain the prisoner's demurrer to the indictment; the charge of the clerk to the jury; and the response made by the county court to the inquiry of the jury—should he considered together.

We are of opinion that the court did not err in overruling the demurrer. The indictment is for the common law offense of robbery, which is defined to be "the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting him in fear." 4 Bl. Comm. 242. Our statute, in respect to the offense of robbery, reads as follows: "If any person commit robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of fire-arms, he shall be punished with death, or, in the discretion of the jury, by...