Jolly v. Commonwealth

• Decision Date: 14 June 1923
• Citation: 118 S.E. 109
• Parties: JOLLY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

118 S.E. 109

JOLLY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 14, 1923.

[COPYRIGHT MATERIAL OMITTED]

Error to Corporation Court of Hopewell.

Charles Jolly was convicted under an indictment, charging him with breaking Into a store with intent to steal and with receiving property knowing it to have been stolen, and he brings error. Reversed and remanded.

A. L. Jones, of Hopewell, and Thos. H. Howerton, of Waverly, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

KELLY, P. This Is a writ of error to a judgment of the corporation court of the city of Hopewell, whereby the accused, Charles Jolly, was sentenced to the penitentiary for the term of four years.

There were four counts in the indictment which, briefly stated, were as follows: (1) That the accused feloniously broke and entered, in the nighttime, the store of L. M. Davis in the city of Hopewell, with the intent to feloniously steal and carry away certain automobile tires owned by said Davis and of greater value than fifty dollars; (2) that he broke and entered, in the daytime, the storehouse aforesaid with the intent aforesaid; (3) that in the county or Prince George and within one mile of the city of Hopewell he aided Paul Jones and Archie Roberts in concealing tires as described in the first two counts, knowing them to have been stolen; and (4) that in the county of Prince George, and within one mile of Hopewell, he bought and received from other persons, to the grand jurors unknown, tires as aforesaid, knowing them to have been stolen.

The verdict of the jury was general in form, and did not specify the count or counts upon which it was found.

1. A demurrer to the indictment and to each count thereof was overruled. The first ground upon which we are asked to reverse the judgment is that the court erred in not holding the third and fourth counts bad because, instead of alleging in direct terms that the tires were in fact stolen, they do so only by the implication arising from the charge that the accused helped to conceal, or bought and received them, "knowing the same to have been stolen." We shall not waste words on this point. No supporting authority exactly applicable is cited, although we concede that State v. Cleveland, etc., R. R., 137 Ind. 75, 36 N. E. 713; Commonwealth v. Bolkom. 3 Pick. (Mass.) 281; Payne v. State, 38 Tex. Cr. R. 494, 43 S. W. 515, 70 Am. St. Rep. 757; and Commonwealth v Lansdale, 98 Ky. 664, 34 S. W. 17, relied upon by counsel for the accused, tend strongly to support the position taken by them. If these authorities were directly in point, we could not approve and follow them. Of course, it must appear from the indictment that the goods were stolen, but a clear and unequivocal intendment to that effect is sufficient. The accused could not know, as was expressly charged in the indictment, that he was concealing or buying and receiving stolen tires, unless there had been a larceny of them. If it be thought necessary to have authority for so plain a proposition, the following will be found to be exactly in point: State v. Druxlman, 34 Wash. 257, 258, 259, 75 Pac. 814; Sellers v. State, 49 Ala. 357, 358 (reversed on a rehearing, but not so as to affect the proposition for which it is here cited).

It is contended further that the third and fourth counts were fatally defective because they fail to allege that the accused "feloniously" committed the act therein alleged. It has long been generally held that all common-law felonies must be specifically alleged to have been "feloniously" committed, and this rule in Virginia, as in many other states, has been extended to indictments for all crimes which by the laws of the state are punishable by confinement in the penitentiary; the reason for such extension being that all such crimes are by a general statute declared to be felonies. Randall v. Commonwealth, 24 Grat. (65 Va.) 644, 646; Beale's Cr. Pl. & Pr. § 91, pp. 91, 92. Other courts, including the Supreme Court of the United States, have held that the word "feloniously" is not necessary in an indictment for an offense created by statute, unless that word, or the word "felony, " is used in the statute as a part of the definition of the crime. Beale's Cr. PL & Pr. supra; 1 Whart. Cr. Pr. (10th Ed. by Kerr) § 309; Bannon v. United States, 156 U. S. 464, 466, 15 Sup. Ct 467, 39 L. Ed. 494; People v. Rogers, 81 Cal. 209, 22 Pac. 592; Lyons v. People, 68 111. 271; Wagner v. State, 43 Neb. 1, 61 N. W. 85; Jane v. Commonwealth, 60 Ky. (3 Mete.) 18. The offenses charged in the third and fourth counts of the indictment are statutory, and neither the word "felony" nor the word "feloniously" is used in the definition. Without saying how strictly we would adhere to the Virginia rule in question as to common-law offenses, we think the time has come to abrogate that rule as to statutory felonies, provided the acts charged in the indictment are sufficient to show that the felony has been committed, and that the accused is charged with its commission. It was not possible for the accused, in this case, to have been prejudiced by the omission of the word. The demurrer did not specify the grounds upon which it was based. If it had done so, and had pointed out this objection, the court could, and no doubtwould, have directed an amendment of the indictment pursuant to the provisions of section 4877 of the Code. The judicial and legislative policy of this state is to have both civil and criminal cases "tried on their merits and as far as possible to ignore mere formal defects." See revisors' note to section 4877 of the Code, and Judge M. P. Burks' Address, 5 Va. Law Reg. (N. S.) 97, 104; Collins v. City of Radford, 134 Va. 518, 113 S. E. 735. In view of the perfectly clear allegations of the indictment—absolutely unequivocal and unmistakable in their meaning and effect—it would hardly be possible to conceive of a more formal or a more inconsequential defect, if defect it was at all, than the omission of the word "feloniously" from the third and fourth counts of the indictment in this case. There was no reversible error in overruling the demurrer. In so far as Randall v. Commonwealth, supra, and other like Virginia decisions are in conflict with this conclusion, they will not be hereafter followed.

2. The accused asked for and was denied the following instruction:

"The court instructs the jury that the possession of stolen goods is not even prima facie evidence of housebreaking or larceny."

In lieu of this the court substituted the following:

"The court instructs the jury that while the possession alone of recently stolen property is not prima facie evidence of housebreaking, it is a circumstance that may be considered by the jury, along with any other evidence tending to establish the guilt of the accused upon the first count in the indictment charging housebreaking."

The latter instruction, in the abstract, is clearly correct. Tyler's Case, 120 Va. 868, 91 S. E. 171. It is insisted, however, that the court erred in making this substitution because there was no evidence of any other circumstance tending to show that the accused was guilty of housebreaking. In this view we cannot concur. Possession of stolen goods along with other inculpatory circumstances will warrant a conviction of housebreaking. Tyler's Case, supra. The housebreaking and the larceny of the tires by some one was conclusively established, and the evidence tended to show that the accused had the opportunity to commit the burglary, and that he concealed the tires first in Hopewell Heights and later in the woods near his home. He undertook to establish an alibi, but whether he did so to such an extent as to raise a reasonable doubt as to his guilt was, under the evidence, a question for the jury. And, furthermore, there was evidence for the commonwealth that in the jail after his arrest he stated that he had obtained these tires in Hopewell at a place where he had formerly stored a car, and this place was shown to have been on the property owned by Davis and at or near the garage from which the tires were stolen. And it is also true that he was more or less involved in...