Lazier v. Commonwealth

• Decision Date: 29 August 1853
• Citation: 51 Va. 708
• Parties: LAZIER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

51 Va. 708

LAZIER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

August 29, 1853

1. A writ of error awarded during term to a judgment in a case of felony, may be made returnable to any day of the term.

2. In criminal causes the same defects or imperfections of form may be taken advantage of on a general as upon a special demurrer.

3. In an indictment for murder there are two counts, in the second of which the offence is not set out as another offence. This is not error. See Code, p. 770, § 11.^[a1]

4. If two distinct felonies are charged in one indictment, it may be quashed, or the prosecutor will be compelled to elect for which offence he will proceed.

5. It is not error that dates in an indictment are set out in figures instead of words. See Code, p. 770, § 11.^[a1]

6. An indictment for murder charges the wound to have been inflicted on the 9th of December, of which wound she on the said 14th of December died. The word " said" is surplusage, and its insertion is not a fatal defect.

7. In an indictment for murder it is not necessary to set out the length, breadth or depth of the wound. See Code, p. 770, § 10.^[a1]

8. Two persons being jointly indicted for the same offence, and being tried separately, one is not an incompetent witness for the other by reason of the joint indictment. See Code, p 752, § 21.

At the May term 1853 of the Circuit court for the county of Wood Benoni Lazier and Hyatt Lazier were jointly indicted for the murder of Clemansa Devon. The indictment contained two counts, in both of which the offence was described in nearly the same terms; and the second count did not set it out as another offence. In both counts, too, the dates were set out in figures; and in neither was the depth or length or width of the wound described. It was charged to have been made by a shot from a rifle gun on the knee of the right leg, on the right side thereof. In the first count, after setting out the infliction of the wound, it is said, " Of which mortal wound she, the said Clemansa Devon, from the said 9th day of December in the year aforesaid did languish, and languishing did live; on which said 14th day of December in the year 1852 the said Clemansa Devon, in the county aforesaid, of the said mortal wound died."

When the prisoners were brought into court, they demurred generally to the indictment and each count thereof; and the attorney for the commonwealth having joined in the demurrer it was overruled by the court. They then pleaded " Not guilty," and elected to be tried separately. Benoni Lazier was thereupon put upon his trial; and the jury found him guilty of murder in the second degree, and fixed the term of his imprisonment in the penitentiary at fifteen years. Whereupon the court, overruling his motion for a new trial sentenced him in accordance with the verdict.

In the progress of the trial the prisoner made several questions to the court which were overruled; and he excepted. The first was, that whilst the court was selecting twenty-four men for the panel, the attorney for the commonwealth insisted to have the question put to each juror, as he was sworn, whether his opinion was such as to prevent his convicting any one of an offence punishable with death. To this the prisoner objected, but the court overruled the objection.

Another question was, that a juror having in answer to a question by the court, stated that he had made up a decided opinion from rumor; the prisoner asked him whether the opinion was favorable or unfavorable to him; when the court interposed and told the prisoner that he could not be allowed to ask that question: And the juror was set aside.

Another question was as to the competency of Hyatt Lazier as a witness for the prisoner. He was jointly indicted with the prisoner; and had not been tried. The attorney for the commonwealth rested his objection solely on that ground; and the court sustained it, and excluded the witness.

And last the prisoner moved the court to instruct the jury to disregard the first count; which motion the court overruled.

The prisoner applied to this court for a writ of error at its present term, and the writ was granted, and made returnable to the same term.

Fisher, for the prisoner.

The Attorney General, for the commonwealth.

MONCURE J.

The indictment in this case is against Benoni Lazier and Hyatt Lazier, for the murder of Clemansa Devon, and contains two counts. The accused demurred generally to the indictment and each of the counts; and the attorney for the commonwealth joined in demurrer. The demurrers were overruled. The accused being then arraigned, severally pleaded not guilty, and elected to be tried separately. Benoni Lazier was tried first; and was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for fifteen years, the period by the jurors in their verdict ascertained: And this is a writ of error to the judgment against him.

The writ was awarded and made returnable during the present session of this court, but after the first day thereof; and a preliminary question was raised by the counsel for the plaintiff in error, whether it should not have been made returnable to the court on the first day of a term, or in the clerk's office to the first Monday in a month, or to some rule day. This question is answered by the Code, p. 642, § 2, which declares that " process awarded in court may be returnable as the court shall direct."

The first error assigned in the judgment is, that the court erred in overruling the demurrers: And this assignment of error I will now proceed to consider.

It was decided by the General court in the case of the Commonwealth v. Jackson, 2 Va. Cas. 501, that the act in 1 Rev. Code 1819, p. 511, § 101, taken from the English statute of 27 Eliz. ch. 5, declaring that the court shall not regard any other defect or imperfection in the pleadings than what shall be specially alleged in the demurrer as causes thereof, does not extend to criminal causes; and therefore, in such cases, defects or imperfections of form may be taken advantage of on general demurrer. The same construction should be put on the corresponding provision in our present Code, p. 650, § 31; and the same objection may still be made on a general, as on a special demurrer in a criminal case. There are provisions in the Code, however, dispensing with the necessity of formal allegations in an indictment; and declaring that " no indictment or other accusation shall be quashed, or deemed invalid," for any of certain enumerated causes. So far as these provisions extend, they cure the indictment against objection, however raised; and they seem to extend to most if not all defects of form.

One of the objections taken to the indictment is, that the two counts appear to be for the same murder; whereas the joinder of several counts in one indictment is allowed on the theory, that two or more offences of the same nature, on which the same or a similar judgment may be given, may be contained in different counts of the same indictment; and it should therefore appear in the form of stating the offence in the different counts, that they are for different offences; otherwise the indictment is demurrable for duplicity.

It is usual to obviate this technical objection of duplicity, by inserting the word " other" before the subject of the offence in a second count. But it is not inserted in all cases, and its insertion in no case is indispensably necessary. It is not usual to insert it in indictments for murder; but the party murdered is described in all the counts as the same person, and the instrument of death is not always stated in the different counts to be a different instrument; nor can it be necessary that it should be so stated; for certainly different offences may be committed with the same instrument. The indictment in this case, so far as relates to this objection, conforms to precedents furnished by approved writers on criminal law. The objection, therefore, does not apply to the case. But if so technical an objection would ever have been sustained in any case in this state, it would not now; the Code, p. 770, § 11, having dispensed with the necessity of inserting in an indictment any allegation which is unnecessary to be proved. So far from its being necessary to prove that offences stated in different counts of an indictment are different offences, if they are in fact different, and are felonies, the indictment may be quashed, or the prosecutor compelled to elect for which offence he will proceed; though the indictment will not on that ground be demurrable.

Another objection taken to the indictment is that the dates are set out in figures instead of words.

It is certainly safer and more certain to set out dates in an indictment in words instead of figures. Figures are more easily altered than words, and are more apt to be illegible, either from obliteration, or not being plainly made. In practice, they are not often used in indictments, except in describing written instruments, though they sometimes are: And I do not think that at this day the use of them would be a fatal defect in an indictment, even at common law. In England it would be under the statutes 4 Ga. 2, ch. 26, and 6 Ga. 2, ch. 14, requiring all indictments to be in words, at length.

Wharton in his American Criminal Law, p. 146, says that dates are more properly inserted in words written at length, than in Arabic characters; but a contrary practice will not vitiate an indictment. The cases which he cites, so far as I have had access to them, seem fully to sustain what he says. There are, no doubt, some American cases the other way, and 6 Blackf. R. 533, is cited as being so, by the counsel for the plaintiff in error. ...