Matthews v. Commonwealth

• Decision Date: 04 February 1868
• Parties: MATTHEWS v. THE COMMONWEALTH. GARNER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

59 Va. 989

MATTHEWS v. THE COMMONWEALTH.

GARNER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

February 4, 1868

1. The act of April 27, 1867, to revise and amend the criminal procedure, Sess. Acts 1866-67, p. 915, ch. 128, does not authorize the trial of a prisoner for felony, except upon an indictment found by a grand jury in a court of competent jurisdiction.

2. A statute will be construed according to its obvious intention though the collocation of the different branches of the provision are so arranged, by mistake, as to lead to a different conclusion.

3. Anything which is good cause for arresting a judgment, is good cause for reversing it, though no motion in arrest is made.

At the September term, 1867, of the County court of Fairfax, the attorney for the Commonwealth, upon his oath of office, filed an information against Samuel Matthews and Cordelia Garner for the murder of Thomas Garner. Thomas Garner was the husband of Cordelia, and they were negroes. When brought into court, they demanded to be tried before the Circuit Court and in the Circuit Court they elected to be tried separately.

Matthews being first tried, the jury found him guilty of murder in the first degree; and the court sentenced him to be hung. In his case no exception was taken during the trial; nor was there a motion in arrest of judgment.

Cordelia Garner was then put upon her trial, and the jury found the prisoner guilty of murder in the second degree, and ascertained her term of imprisonment in the penitentiary at five years. She thereupon moved the court for a new trial, on the ground that the dying declarations of Thomas Garner, who was her husband, had been introduced by the Commonwealth as evidence against her, which she insisted was illegal; and if admissible, the proof was insufficient to maintain the issue on behalf of the Commonwealth. But the court overruled the motion, and sentenced her in accordance with the verdict; and this prisoner excepted. The question as to the evidence was not considered by the court. On the application of the prisoners, writs of error were awarded them.

Brent and Dulaney, for the prisoners.

The Attorney General, for the Commonwealth.

MONCURE P.

These cases come up on writs of error to judgments of the Circuit Court of Fairfax county, rendered on the 7th and 9th days of November, 1867, convicting the plaintiffs in error of the murder of one Thomas Garner--Samuel Matthews being convicted of murder in the first degree, and Cordelia Garner of murder in the second degree. An information had been filed against them in the county court of Fairfax in September, 1867, by the Commonwealth's attorney for that county " upon his oath of office," charging them jointly with the commission of the murder. Upon their arraignment in the county court, they demanded to be tried in the Circuit Court of the county, and they were thereupon remanded for trial in that court. In the Circuit Court they elected to be tried severally, and accordingly were so tried, upon the said information, to which each of them pleaded not guilty. Samuel Matthews was first tried and then Cordelia Garner, and they were severally convicted as aforesaid; the former being condemned to be hung, and the latter to imprisonment in the penitentiary for five years. On the trial in the Circuit Court, no question was raised by Matthews, and the only question raised by Cordelia Garner was by an exception to a decision of the court overruling her motion for a new trial. Neither party moved in arrest of judgment. The main question presented for the decision of this court in these cases, and that on which alone they will be decided, is, whether a person can be put upon trial for any felony unless an indictment shall have first been found against him therefor by a grand jury in a court of competent jurisdiction?

If he can be, it is alone in virtue of an act of Assembly passed April 27, 1867, entitled " an act to revise and amend the criminal procedure." Sess. Acts 1866-7, pp. 915-946 ch. 118. By that act all the chapters, twelve in number, from 201 to 212 inclusive, of Title 55 of the Code of 1860, pp. 817-849, were either repealed or amended and re-enacted--chapters 205 (of examining courts,) and 212 (of proceedings against negroes,) being repealed, and the others amended and re-enacted. The amendment of the first two sections of chapter 207 is that on which the question we are now considering arises. Those two sections, as they stand in the Code, p. 831, are as follows:

" 1. Prosecutions for offences against the Commonwealth, unless otherwise provided, shall be by presentment, indictment or information. The trial of a white person, on a charge of felony, or of a free negro for a felonious homicide or a felony punishable with death, shall always be by indictment.

2. No information shall be filed unless by leave of the court entered of record, nor unless the accused, being summoned for that purpose, fail to show good cause to the contrary."

In lieu of these two sections, which were stricken out, the two following were adopted in the amended act, p. 926 of the session acts 1866-7:

" 1. Prosecutions for offences against the Commonwealth, unless otherwise provided, shall be by presentment, indictment or information.

2. An information may be filed upon a presentment or indictment by a grand jury, or upon a complaint in writing verified by the oath of a competent witness; but no person shall be put upon trial for any felony, unless an indictment shall have first been found by a grand jury in a court of competent jurisdiction, or upon the certificate of the committing justice. If the accused be in custody, or has been recognized or summoned to answer such presentment, indictment or complaint, no other process shall be necessary; but the court may, at its discretion, issue process to compel the appearance of the accused."

Now if we construe this amendment literally, it is evident that no person can be put upon trial for any felony unless upon an indictment found by a grand jury, or upon the certificate of the committing justice; and as the plaintiffs in error were not put upon their trial, either upon an indictment found by a grand jury, or upon a certificate of a committing justice, but upon an information filed by the Commonwealth's Attorney, and filed too, not " upon a presentment or indictment by a grand jury, or upon a complaint in writing verified by the oath of a competent witness," but merely " upon his oath of office," the judgments might, on that ground, be reversed. But we think the amendments ought not to be so construed; and that, according to the true and proper construction thereof, no person can be put upon trial for any felony, unless an indictment against him therefor shall have first been found by a grand jury in a court of competent jurisdiction. A mistake was manifestly made in the location of some of the words of the second section, as is apt to be the case in the process of making amendments in the course of legislation. The mistake consisted in inserting the words, " but no person shall be put upon trial for any felony unless an indictment shall have been first found by a grand jury in a court of competent jurisdiction," before instead of after the words, " or upon the certificate of the committing justice." By a simple transposition of a few words in the same sentence, and without altering, supplying or omitting a single word, the manifest intention of the Legislature will be effectuated; and we therefore think the transposition ought to be made, and that the former part of the section ought to be construed and read as if it were written thus: " An information may be filed upon a presentment or indictment by a grand jury, or upon a complaint in writing, verified by the oath of a competent witness, or upon the certificate of the committing justice; but no person shall be put upon trial for any felony, unless an indictment shall have first been found by a grand jury in a court of competent jurisdiction."

That this is the meaning of the Legislature, we think is shown first, by the reason of the thing; secondly, by the rules of grammatical construction, as applied to the words of the section as they now stand; and thirdly, by the context. And first, it is shown by the reason of the thing. It is impossible to suppose that the Legislature, after carefully providing that no person should be put upon trial for any felony, upon a presentment of a grand jury, or upon a complaint in writing verified by the oath of a competent witness, or upon an information though filed upon such a presentment or complaint, intended to...