J.H. Deboer v. Commonwealth
| Decision Date | 17 March 1927 |
| Citation | 147 Va. 671 |
| Parties | J. H. DEBOER v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. AUTREFOIS, ACQUIT AND CONVICT — Plea — Oral Plea. — In the instant case, a prosecution for unlawful possession of ardent spirits and a still, when the case was called for trial the accused appeared specially and entered an oral plea of former jeopardy, assigning the reason that he had already been convicted upon the same evidence, at the June term of the court, of unlawfully manufacturing ardent spirits. The following order was entered by the court: "Which plea the court overruled and the accused, by counsel, excepted."
Held: That the assignment of error to the action of the court was not well taken because there was no plea of former jeopardy in the record nor was such a plea either tendered in writing and filed or rejected.
2. AUTREFOIS, ACQUIT AND CONVICT — Special Plea — Writing. — A special plea of former jeopardy should be in writing.
3. AUTREFOIS, ACQUIT AND CONVICT — Special Plea — Contents — Essentials — Case at Bar. — It has been held that it is essential that a special plea of former jeopardy should set forth the court in which the accused was tried, the time thereof, the specific offense charged, the acquittal or conviction of the accused, and any other circumstance necessary to identify the offense and the accused. In the instant case, a prosecution for unlawful possession of ardent spirits and a still, when the case was called for trial the accused appeared specially and entered an oral plea of former jeopardy, assigning the reason that he had already been convicted upon the same evidence, at the June term of the court, of unlawfully manufacturing ardent spirits.
Held: That every essential of the plea of former jeopardy was lacking in the oral plea.
4. BILL OF EXCEPTIONS — Necessity — Plea Overruled or Stricken Out — Criminal Cases. — Where the trial court overrules a plea, rejects a plea, or strikes the same from the record, the only method of getting the plea in the record is by an express order of the court, or by a bill of exceptions, which sets forth the plea in full and also the action of the court with reference thereto. The rule is the same in criminal as in civil cases.
5. BILL OF EXCEPTIONS — Plea of Former Jeopardy — Case at Bar. — In the instant case it was the contention of the Commonwealth that the action of the court in overruling a plea of former jeopardy had not been duly preserved by a proper bill of exceptions. A bill of exceptions stated that accused moved to set aside the verdict as contrary to the law and the evidence and "because of former jeopardy."
Held: That the bill of exception should set forth a plea of former jeopardy which contains all of the necessary essentials, and the ruling of the court in regard thereto. The plea of former jeopardy not being a part of the record, the contention of the Commonwealth was well founded.
6. INTOXICATING LIQUORS — Charge of Having Possessing of Ardent Spirits and a Still — Evidence Sufficient to Support Conviction. — In the instant case, a prosecution for unlawful possession of ardent spirits and a still, it was shown beyond every reasonable doubt that a still was found about twenty-five steps from the house of the accused, and on his premises. It was further shown that a keg containing at least five gallons of whiskey was found upon the premises of the accused near his barn.
Held: That the evidence was sufficient to support a verdict of guilty.
Error to a judgment of the Circuit Court of York county.
The opinion states the case.
John H. Bowen, for the plaintiff in error.
John R. Saunders, Attorney General, Leon M. Bazile and Lewis H. Machen, Assistant Attorneys General, for the Commonwealth.
The plaintiff in error was tried and convicted upon an indictment charging that he "did unlawfully have in his possession ardent spirits, and a certain still capable of being used in the manufacture of ardent spirits."
He is here complaining of the action of the trial court in refusing to set aside the verdict of the jury which is as follows: "We, the jury, find the accused guilty as charged in the indictment and fix his punishment at six months in the county jail and $100.00 fine."
It appears from the record that on the third day of March, 1925, several officers searched the premises of the accused, but did not go into his dwelling house. Buried in his wood-pile, about twenty-five steps from his house, was found a copper still of a capacity of about 115 gallons. In his hog lot were found seven barrels of mash, containing about fifty gallons each, covered over with brush; a vat, or tub, containing about 150 gallons of mash. These were found in about 125 or 150 yards from the house. In his corn field, about 145 yards from his barn, the officers found buried a ten gallon keg about half full of whiskey. Under a wood-pile in the hog lot was found buried a barrel of mash. In the barn were two bags of sugar, each containing one hundred pounds, which were covered over with empty bags. The general reputation of the accused as a violator of the prohibition law was bad.
The first error assigned is that the court erred in overruling the plea of former jeopardy offered by the accused.
When the case was called for trial, the accused appeared specially and entered an oral plea of former jeopardy, assigning the reason that he had already been convicted upon the same evidence, at the June term of the court, of unlawfully manufacturing ardent spirits.
The action of the court is set forth in the order entered as follows: "Which plea the court overruled and the accused, by counsel, excepted."
It is the contention of the Commonwealth that the assignment of error is not well taken because there is no plea of former jeopardy in the record, nor was such a plea either tendered in writing and filed or rejected.
Section 8 of the Virginia Constitution provides that no man shall be put twice in jeopardy for...
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Burford v. Commonwealth
..."We are, therefore, of the opinion that a plea which raises the issue of former jeopardy must be in writing." J. H. DeBoer v. Commonwealth, 147 Va. 671, 675, 137 S.E. 469, 470. However, counsel earnestly contend that the acquittal of the accused on a warrant charging assault and battery con......
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Burford v. Commonwealth
... ... cases on the question, said: "We are, therefore, of the opinion that a plea which raises the issue of former jeopardy must be in writing." DeBoer Commonwealth, 147 Va. 671, 675, 137 S.E. 469 ... However, counsel earnestly contend that the acquittal of the accused on a warrant ... ...
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