Livingston v. Commonwealth, Record No. 3041.
| Decision Date | 14 January 1946 |
| Docket Number | Record No. 3041. |
| Citation | 184 Va. 830 |
| Parties | JOSEPH LIVINGSTON v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
1. CRIMINAL LAW — Prosecution — Trial According to Merits. — The policy of the legislature is to have criminal cases tried on their merits as far as possible, and to ignore mere formal defects.
2. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Amendments — Fatal Defects. — Under the Code of 1942, sections 4876-4878, even indictments which are fatally defective may be amended if such amendment is made at the proper time.
3. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Amendments — Nature and Purpose of Code Section 4878. — Section 4878 of the Code of 1942, 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.
4. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Waiver. — A statutory requirement for prosecution of a felony by indictment may be waived.
5. BILL OF PARTICULARS — Office of the Bill — In Criminal Cases. — The bill of particulars is not for the purpose of charging the offense. The indictment must do that. The accused can not be tried upon a bill of particulars alone but the bill of particulars and the indictment must be read together. The function of the bill of particulars is to supply additional information concerning the accusation.
6. BRIBERY — Indictments, Informations and Presentments — Variance between Indictment and Statute — Case at Bar. — In the instant case, a prosecution for bribery under the Code of 1942, section 4496, the indictment charged that accused feloniously did corruptly offer a certain person, a police officer of a certain city, $50.00 with intent to influence the acts of such person "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 variance between the statute and the indictment was that the indictment left out the words of the statute "on any matter, question, cause or proceeding which is or may be then pending or may be law come or be brought before him in his official capacity."
Held: That the quoted words of the indictment which were supplied were in substance equivalent to the omitted words of the statute and the failure to include the omitted words of the statute in the indictment under such circumstances could not have invaded the constitutional rights of the accused. It was not necessary that the indictment follow the identical words of the statute if it gave the accused notice of the nature and character of the offense charged so he could make his defense.
7. BRIBERY — Indictments, Informations and Presentments — Charging Knowledge of Official Capacity of Person Bribed — Case at Bar. — In the instant case, a prosecution for bribery under the Code of 1942, section 4496, the indictment charged that accused feloniously did corruptly offer a certain person, a police officer of a certain city, $50.00 with intent to influence the acts of such person "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." Accused contended that the indictment failed to state that the accused had knowledge of the official character of the person to whom the bribe was offered.
Held: That there was no merit in the contention since the indictment implied that the accused was being charged with knowledge that he was offering a bribe to a police officer.
8. BRIBERY — Failure of Statute to Require That Accused Had Knowledge That Bribe Was Offered to One in Official Capacity — Validity of Statute — Case at Bar. — In the instant case, a prosecution for bribery under section 4496 of the Code of 1942, accused contended that the statute was invalid because the statute does not in terms require that one accused thereunder have knowledge that the bribe was offered to one in his official capacity.
Held: That there was no merit in the contention since the statute infers knowledge on the part of the accused and it is unnecessary to charge guilty knowledge unless that is a part of the statutory definition of an offense.
Error to a judgment of the Corporation Court of the city of Norfolk. Hon. R. B. Spindle, Jr., judge presiding.
The opinion states the case.
Vivian L. Page and Ivor A. Page, Jr., for the plaintiff in error.
Abram P. Staples, Attorney General, and V. P. Randolph, Jr., Assistant Attorney General, for the Commonwealth.
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 warrant 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: , to which Officer Littlejohn replied, "No". In a few minutes Officer Helvin 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 Officer Helvin demanded Helvin stated that he would refused, whereupon Officer Helvin tated 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:
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 effect 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...
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