McKinley v. Com.
| Decision Date | 11 June 1976 |
| Docket Number | No. 750715,750715 |
| Citation | 225 S.E.2d 352,217 Va. 1 |
| Court | Virginia Supreme Court |
| Parties | Vincent Lee McKINLEY v. COMMONWEALTH of Virginia. Record |
John C. Lowe, Charlottesville (F. Guthrie Gordon, III, Lowe & Gordon, Ltd., Charlottesville, on brief), for plaintiff in error.
James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
The defendant, Vincent Lee McKinley, was indicted in the court below for abduction in violation of § 18.1--36 of the Code of Virginia of 1950, as amended. He was convicted by a jury of abduction 'with intent to defile'; his punishment was fixed at confinement in the penitentiary for a period of fifteen years; and he was sentenced accordingly by the trial court. McKinley has appealed upon the ground that the court erred in failing to grant his motion to quash the indictment on which he was tried.
The indictment charged that the defendant, on March 21, 1974, 'unlawfully and feloniously, by force and intimidation and without legal justification or excuse, did seize and abduct the person of (victim's name), in violation of Section 18.1--36 of the Code of Virginia of 1950, as amended'.
The verdict of the jury was:
'We the jury find the defendant McKinley guilty of abduction of (victim's name) as set forth in the indictment with intent to defile her and fix his punishment at fifteen years confinement in the penitentiary.'
Code § 18.1--36, then in effect, provided, in pertinent part, as follows:
'Any person, who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, shall be deemed guilty of 'abduction'; . . ..'
Code § 18.1--37 then provided that 'Abduction for which no punishment is otherwise prescribed shall be punished by confinement in the penitentiary for not less than one year nor more than twenty years, or, in the discretion of the jury or the court trying the case without a jury, by confinement in jail for not more than twelve months or a fine of not more than one thousand dollars, either or both; . . ..'
The succeeding section, § 18.1--38, then provided that:
'Abduction with the intent to extort money, or pecuniary benefit, abduction of any person with intent to defile such person, and abduction of any female under sixteen years of age for the purpose of concubinage or prostitution shall be punished with death, or by confinement in the penitentiary for life or any term not less than three years. . . .'
The record shows that following the defendant's arraignment and the entry of his plea of not guilty, his counsel moved 'to quash the indictment on the charge of abduction', upon the ground 'that it does not sufficiently state a charge to inform the man what he's accused of, to enable him to prepare a proper defense'. However, counsel for the defendant then represented to the court that he knew the Commonwealth was going to endeavor to introduce evidence to show that the abduction was with the intent to defile. He argued that it would be prejudicial to his client for any evidence to be introduced showing what occurred after the alleged abduction.
In brief, defendant's claim is that the indictment should have alleged that the abduction occurred with the intent to defile if the Commonwealth intended to introduce evidence as to such intent and to seek to have the defendant punished under then Code § 18.1--38. The position of the Commonwealth is that abduction was made a crime by Code § 18.1--36, and that the punishment for the crime was provided by Code §§ 18.1--37 and 18.1--38. The Commonwealth's Attorney argued that the offense was 'defined quite aptly and well in § 18.1--36, that the applicable Code Sections for punishment are a matter of proof rather than allegation'. The trial court...
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Atkins v. Commonwealth Of Va., Record No. 1864-09-1.
...The crime is not defined by the penalty. Id. (other citations omitted). Appellant seeks to distinguish Thomas from McKinley v. Commonwealth, 217 Va. 1, 225 S.E.2d 352 (1976), Hall v. Commonwealth, 8 Va.App. 350, 352, 381 S.E.2d 512, 513 (1989), Moore, 27 Va.App. 192, 497 S.E.2d 908. However......
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Hughes v. Com.
...evidence only establishes a violation of the lesser offense of abduction in violation of Code § 18.2-47. See McKinley v. Commonwealth, 217 Va. 1, 3-4, 225 S.E.2d 352, 353 (1976). See also Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975); Ingram v. Commonwealth, 192 Va......
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Goodall v. Clarke
...that the Commonwealth sought to convict him for the enhanced punishment provided by Code § 11 18.2-248. See McKinlev v. Commonwealth. 225 S.E.2d 352, 353-54 (Va. 1976) ("where an offense is punishable with a higher penalty, because it is a second or subsequent offense of the same kind, the ......
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Morales v. Commonwealth Of Va.
...in turn, provides a more severe punishment for abduction "of any person with intent to defile such person." See McKinley v. Commonwealth, 217 Va. 1, 4, 225 S.E.2d 352, 353 (1976) ("distinguishing feature" between offenses of abduction under Code § 18.2-47(A) (formerly Code § 18.1-36) and Co......