Livingston v. Commonwealth

• Decision Date: 14 January 1946
• Citation: 36 S.E.2d 561,184 Va. 830
• Court: Virginia Supreme Court
• Parties: LIVINGSTON. v. COMMONWEALTH.

36 S.E.2d 561

184 Va. 830

LIVINGSTON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14. 1946.

Error to Corporation Court of City of Norfolk; R. B. Spindle, Jr., Judge.

Joseph Livingston was convicted of offering a bribe to a police officer, and he brings error.

Judgment affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Vivian L. Page and Ivor A. Page, Jr., both of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for Commonwealth.

GREGORY, Justice.

Joseph Livingston was indicted for offering a bribe to a police officer under Code, sec. 4496 (Michie), was found guilty, and his punishment fixed at two years in the penitentiary. A judgment was entered upon the verdict which is now the subject of review.

The facts disclose that on February 10, 1945, in the city of Norfolk, H. L. Helvin and E. D. Littlejohn, members of the Norfolk police force, went to a restaurant on Granby Street operated by Joseph Livingston, the accused. This restaurant was also being operated as a club. The officers went there for the purpose of searching for illegal whiskey, and they had a search war-rant in their possession for the premises. In the back of the premises they saw two cases of whiskey, and Officer Littlejohn found inside the kitchen of the accused a small pantry or storeroom, the door of which was open. The accused slammed the door and locked it, whereupon Officer Littlejohn told him to open the door, which he at first refused to do. While in the kitchen the accused made this remark to Officer Littlejohn: "This is going to ruin me. I have got every nickel I have tied up here. Can't we settle this here?", to which Officer Littlejohn replied, "No". In a few minutes Officer Kelvin came in and the accused said, "Let me talk to that man there, " (speaking of Officer Helvin), and then the accused said to Officer Helvin "Let me speak to you, please." He and Officer Helvin stepped back a short distance but not entirely out of the presence of Officer Littlejohn. Officer Littlejohn heard Officer Helvin say, "Hell, no, and that will be another charge against you." According to Officer Helvin, the accused had called him over to the front part of the building where he asked the accused what he had in the storeroom, and told him to open the lock to the door and let him see what was in there. The accused replied, "My God, if you go in there you will ruin me. I have got everything I have got invested in the stuff I have got in there." Officer Helvin demanded the key and the accused refused, whereupon Officer Helvin stated that he would break the lock and he began to do so when the accused said to Officer Helvin: "I will give you $50 not to go in there, and to take the officer out of the building." As Officer Helvin started to knock the lock off, the accused opened the door himself and the officer found 14 or 15 cases of whiskey in the storage room.

The accused, through his counsel, moved the court in arrest of judgment for alleged errors apparent on the face of the record. This motion was overruled and final judgment was entered upon the verdict.

Code, sec. 4496 (Michie), under which this prosecution was had, reads as follows: "If any person corruptly give, offer, or promise to any executive, legislative, or judicial officer, or to any candidate for such office, and either before or after he shall have qualified, or shall have taken his seat, any gift or gratuity, with intent to influence his act, vote, opinion, decision, or judgment on any matter, question, cause, or proceeding, which is or may be then pending, or may by law come or be brought before him in his official capacity, he shall, upon conviction, be confined in the penitentiary not less than one nor more than ten years. This section shall also apply to a resident of this State who, while temporarily absent therefrom for that purpose, shall make such gift, offer or promise, and thereafter return to this State."

The indictment upon which the prosecution was based reads as follows: "The grand jurors of the Commonwealth of Virginia in and for the body of the City of Norfolk and now attending the said court at its March term, 1945, upon their oaths present that Joseph Livingston on the 10th day of February in the year 1945, in the said City of Norfolk feloniously did corruptly offer to H. L. Helvin, a police officer of the City of Norfolk, Virginia, to-wit, $50.00 of United States Currency, of the value of, to-wit, $50.00 with intent to influence the acts of the said H. L. Helvin, as such police officer in the performance of his duties in his official capacity as such police officer against the peace and dignity of the Commonwealth of Virginia."

The position of the accused is that the indictment charged no offense and was of no defect whatever because it did not follow precisely the express language of the statute, Code, sec. 4496; that it failed to embrace all of the circumstances which constitute the definition of the statutory offense of bribery; that it failed to state that the accused had knowledge of the official character of the person to whom the bribe was offered; that the statute itself is defective and invalid because it does not set forth the essentials of the crime of bribery, and that it does not provide that the accused must have knowledge of the official character of the person to whom the bribe is offered.

The accused interposed no demurrer to the indictment, he requested no bill of particulars, no objection whatever was made by him to the form of the indictment until after he had been convicted. He then made a motion in arrest of judgment and, for the first time, made known to the court his objections to the indictment. He contends that he was not too late in raising the question upon a motion in arrest of judgment because the indictment is so fatally defective that it is of no effect. For this reason he contends that he has the right to urge the objection at any time.

If a demurrer had been filed to test the sufficiency of the indictment thecourt most likely would have allowed an amendment to it under Code, sec. 4877 (Michie), provided the amendment would not have changed the character of the offense. If the indictment might have been amended it was not an invalid indictment. An amendment also might have been allowed under Code, sec. 4878 (Michie), if it had been sought by the accused. The policy of the legislature is to have criminal cases tried on their merits as far as possible, and to ignore mere formal defects. This is the purpose of the liberal provisions for amendment provided by the statutes, sections 4876, 4877, and 4878. These sections allow the court to make such changes by way of amendment as it may deem proper to the end that technicalities may be eliminated. They also authorize other changes which might arise out of a variance between the allegations and the proof, provided such changes do not change the nature of the offense charged. Even indictments which are fatally defective may be amended under these sections if such amendment is made at the proper time. Farewell v. Commonwealth, 167 Va. 475, 189 S.E. 321.

Code, sec. 4878 providing for amendments to indictments for treason or felony is remedial and should be construed liberally to correct the evil at which it is directed and to promote the remedy thereby provided. The legislative intent is to simplify criminal procedure. A narrow construction of the statute would defeat its wise purpose. Sullivan v. Commonwealth, 157 Va. 867, 161 S.E. 297.

The manifest purpose of this section (4878) is to allow amendments which avoid unnecessary delays and further the ends of justice, without prejudice to the substantial right of the accused to be informed of the accusation and to one fair trial on the merits. Sullivan v. Commonwealth, supra. In accordance with this policy it has been held that an indictment for rape, which failed to charge that it was committed on a female, as required by the statute (sec. 4414), was good. Likewise an indictment for seduction, which did not charge that the female was of "previous chaste character, " was held to be made sufficient by an amendment supplying those words. Sink v. Commonwealth, 152 Va. 1002, 147 S.E. 231, 232.

In the last-mentioned case the court also held that while it is dangerous to charge a statutory offense in words different from those used in the statute, it is nevertheless well settled that it is unnecessary in an indictment under a statute to use the precise language thereof in describing the offense, if the words used are equivalent to those used in the statute. Numerous cases are cited for that proposition.

We will not undertake to analyze the many cases referred to in the petition touching the sufficiency of indictments. In some jurisdictions courts have strictly construed the language of indictments and have sustained technical objections which affected no substantial right of an accused, while in other jurisdictions courts measure the sufficiency of indictments solely in relation to the substantial right of an accused guaranteed under the Constitution. An indictment is a technical instrument. For many years attempts have been made here and elsewhere to simplify the form of indictments. In Virginia we have what is denominated the "short form" of indictment for murder and manslaughter. See Code, sec. 4865 (Michie). That section also provides that any prosecutions for offenses against the Commonwealth, unless otherwise provided, shall be by presentment, indictment, or information, and that any form is sufficient which informs the accused of the nature and cause of the accusation against him.

In this jurisdiction there is no constitutional requirement that prosecutions for felony be by indictment. The requirement is merely statutory. See Code, sec...