Leftwich v. Commonwealth

• Decision Date: 15 November 1870
• Citation: 61 Va. 716
• Parties: LEFTWICH v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

61 Va. 716

LEFTWICH v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 15, 1870

1. The statute for punishing persons obtaining money or other property which may be the subject of larceny, by any false pretense, makes the offence larceny; Code, ch. 192, s. 49, p 796; and an indictment for the offence may be, either in the form of indictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny.

2. In an indictment under this statute, for obtaining money upon a false pretense, it is not sufficient to describe it as " ninety dollars in United States currency; " but it should shew what kind of United States currency was obtained.

3. When a prisoner has been taken to the penitentiary, before the judgment against him is reversed by the Court of Appeals that court will bring him before them by habeas corpus, and discharge him.

4. The Court of Appeals will not hear a case where the prisoner has escaped, and is going at large; but will make an order to dismiss the appeal unless he returns into custody. But having heard and reversed a case without having been informed of the escape of the prisoner, the court will not afterwards set it aside.

This was an indictment in the County court of Montgomery county against Lewis Leftwich, found at the November term, 1868. The indictment contains three counts. The first count charges that Leftwich, designing and intending feloniously to defraud one Jeremiah K. Montague of his money, on the 6th day of May 1868, in the said county, did designedly, falsely and feloniously, personate and represent himself to the said Montague to be one Gabriel May, and as such, he, the said Lewis Leftwich, was then and there the owner of a negotiable note executed, & c., by William Mahone, president, to Gabriel May, or his order, & c., for one hundred and twenty-eight dollars. Whereas, the said note was the property of the said Gabriel May, & c., and was of the value of ninety dollars, United States currency; and under such assumed name and character, and by means of such false and felonious pretence, he, the said Lewis Leftwich, did, &amp c., receive for said note, from the said Jeremiah K. Montague, the sum of ninety dollars in United States currency, of the value of ninety dollars, of the property of said Montague, & c., with intent to defraud him, & c.

The second count sets out that Leftwich pretended and represented that he was authorized to sell the note; and by means of such fraudulent pretence, he did feloniously and fraudulently receive from Montague, for the note, the sum of ninety dollars in United States currency, & c.

The third count is like the first, with the addition--and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Lewis Leftwich then and there, in manner and form aforesaid, the said ninety dollars, United States currency, of the value of ninety dollars of the goods and chattels and property of the said Jeremiah K. Montague feloniously did steal, take and carry away, against the peace, & c.

The prisoner, when brought into court, moved the court to quash the first and second counts in the indictment; which motion the court overruled. He then demurred to the indictment; and the court overruled the demurrer.

The prisoner then pleaded not guilty; and upon his trial the jury found him guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly. On the trial the prisoner, by his counsel, filed four bills of exception to the rulings of the court; but the questions arising upon these exceptions were not noticed in this court.

The prisoner obtained a writ of error to the Circuit court of Montgomery county, where the judgment of the County court was affirmed; and he then brought the case to this court.

Phlegar, for the prisoner.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE, P.

The plaintiff in error was convicted and sentenced to three year's imprisonment in the penitentiary, for the felony created by the Code, chapter 192, section 49, page 796, which declares that " If a free person obtain by any false pretence or token from any person, with intent to defraud, money or other property, which may be the subject of larceny, he shall be deemed guilty of the larceny thereof," & c. The indictment contained three counts, in each of which the offence was set out specially, and not in general terms, as in the case of a larceny at common law; except that to the third count there is a conclusion in these words: " And so the jurors aforesaid, upon their oath aforesaid, do say that the said Lewis Leftwich, then and there, in manner and form aforesaid, the said ninety dollars, United States currency, of the value of ninety dollars, of the goods, chattels and property of the said Jeremiah K. Montague, feloniously did steal, take and carry away, against the peace and dignity of the Commonwealth of Virginia." In each of the counts, the subject charged to have been obtained by false pretences is described in the same words, as " the sum of ninety dollars, in United States currency, of the value of ninety dollars, of the goods and chattels and property of the said Jeremiah K. Montague." There was a motion to quash the first and second counts, which was overruled; and there was a general demurrer to the whole indictment, which was also overruled. There was then a plea of not guilty, on which verdict and judgment were rendered.

Several errors are assigned in this case, but only two of them need be noticed. They are, in overruling the motion to quash the first and second counts; and in overruling the demurrer to the whole indictment.

In regard to the motion to quash the first and second counts, it is contended that they ought to have been quashed, because they are not in form as for larceny at common law, and do not allege the stealing, taking and carrying away of the subject of the larceny.

It would certainly have been competent for the pleader to have counted as for a larceny of the subject in the form of an indictment for larceny at common law; and proof of the special facts set out in the act as constituting the offence would have sustained the charge. Dowdy v. Commonwealth, 9 Gratt. 727, 734. But it is...