Mitchell v. Commonwealth

• Decision Date: 19 March 1925
• Citation: 127 S.E. 368
• Parties: MITCHELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

127 S.E. 368

MITCHELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 19, 1925.

Prentice, P., and West, J., dissenting in part.

Error to Hustings Court of Richmond.

John Mitchell, Jr., was convicted of violating Code 1924, § 4457, relating to making entries on bank books, and he brings error. Reversed and remanded.

R. L. Montague, S. S. P. Patteson, Geo. E. Wise, and J. Thos. Hewin, all of Richmond, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. John Mitchell, Jr., was convicted of violating section 4457 of the Code, relating to making entries on bank books, and was sentenced to the penitentiary for three years.

The original indictment contained 18 counts, but when the case was called for trial the prosecuting attorney entered a nolle prosequi to the last 15 counts, leaving the first three counts; the first of which charged the larceny of $19,000, the property of the Mechanics' Saving Bank, the second the larceny of $19,000, the property of the Knights of Pythias, and the third a false and fraudulent entry in the ledger account of Mitchell in said bank, with intent, unlawfully and feloniously to conceal the true state of the account of said Mitchell with said bank, and to defraud said bank and to assist said Mitchell to obtain money to which he was not legally entitled.

Mitchell demurred to, and moved to quash, the indictment and each count thereof, on the ground that separate and distinct offenses of a different nature were charged in the different counts and hence there was a misjoinder of counts. The trial court was of opinion that there was no misjoinder of counts 1 and 2, but that count 3 could not be joined with counts 1 and 2. Thereupon the attorney for the commonwealth elected to go to trial on count 3, and the court quashed counts 1 and 2, and overruled the demurrer to count 3. This action of the trial court is assigned as error.

It is insisted by counsel for Mitchell that this is not a case for election, but for quashing; that election only applies to cases where the offenses may be properly joined in different counts in an indictment, butthat where the offenses are so separate and distinct that they cannot be properly joined, then the only remedy is to quash the whole indictment. They cite and rely upon Dowdy v. Commonwealth, 9 Grat. (50 Va.) 727, 60 Am. Dec. 314, and Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652.

The question here under consideration was not involved in either the Dowdy Case or the Pine Case, and the petition concedes that "the instant case is one of undoubtedly first impression in this honorable court." There are expressions in the Dowdy Case which are susceptible of the construction contended for, but in the same connection it is there said:

"There are some cases of felony in which, even though the charges are distinct, the prisoner would not be confounded or the attention of the jury distracted; and in which, therefore, the charges may properly be included in the same indictment and tried together."

What was said in the Pine Case had no reference to a state of facts such as is presented in the instant case.

The authorities seem to agree that there is no objection in point of law to joining two or more distinct felonies in different counts of the same indictment. The objection, when it exists, arises out of confounding the accused or putting him to some disadvantage, or distracting the jury. From the standpoint of pleading the joinder is unobjectionable, and consideration for the accused alone determines the discretion of the court.

In Archbold's Crim. Pl. & Pr. (8th Ed.) 295, it is said:

"If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge, in his discretion, may require the prosecutor to select one of the felonies, and confine himself to that. This is what is technically termed putting the prosecutor to his election."

In 1 Bishop, New Crim. Pro. § 426, it is said:

"Whenever the court, on seasonable application, deems that the due order of its proceedings, or the interest of a party, will be prejudiced by the multiplicity or ill joinder, it will in its discretion quash a count or the whole indictment, or order separate trials on the counts, or compel the prosecutor to elect on which one he will ask for a verdict, as the exigencies of the particular case and the time and manner of making the objection render most suitable."

To the same effect is section 449 of the same text. In this connection it may be noted that in Allen v. Commonwealth, 122 Va. 834, 843, 94 S. E. 783, 786, it is said:

"Bishop says, that the 'compelling of an election pertains not to absolute law but to judicial discretion. Ordinarily, therefore, in most of our states, the decision of the presiding judge, granting or refusing it, is not open to revision by the higher tribunal.' "

In 14 R. C. L. 198, § 42, it is said:

"In order to avoid a difficulty and prejudice to the defendant which might result from the joinder of offenses or of counts in the same indictment or information, the doctrine of election has arisen. As already seen, it has often been held that there is no objection in point of law to a joinder of distinct offenses growing out of different transactions, though the pleading is liable to be quashed. In all such cases, however, where the different counts are for separate and distinct offenses, the prosecuting attorney may be required to elect on which charge he will proceed. * * * This whole subject of election, however, is now generally considered to be a matter within the sound discretion of the court."

See, also, Knox v. State, 164 Ind. 226, 73 N. E. 255, 108 Am. St. Rep. 291, 3 Ann. Cas. 539; State v. Bouknight, 55 S. C. 353, 33 S. E. 451, 74 Am. St. Rep. 751.

In Beale's Crim. Pl. & Pr. §§ 202 and 204, it is said:

"It is entirely proper to join two counts for distinct felonies in the same indictment, " and that "when two separate felonies are charged in different counts of the same indictment, it is within the discretion of the court to order all tried together, or to grant a separate trial."

The question is more fully discussed in Pointer v. United States, 151 U. S. 396, 14 S. Ct. 410,. 38 L. Ed. 208, than in any other case that has come under our observation. Mr. Justice Harlan, after discussing a number of texts and decisions, says:

"While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment, and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. The court is invested with such discretion as enables it to do justice between the government and the accused. If it be discovered at any time during the trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court, according to the established principles of criminal law, can compel an election by the prosecutor."

In Lazier v. Commonwealth, 10 Grat. (51 Va.) 708, 712, it is said, obiter:

"So far from its being necessary to prove that offenses stated in different counts of an indictment are different offenses, if they are in fact different, and are felonies, the indictment may be quashed, or the prosecutor compelled to elect for which offense he will proceed; although the indictment will not on that ground be demurrable."

In Kane v. People, 8 Wend. (N. Y.) 211, it is said:

"In cases of felony where two or more distinct and separate offenses are contained in the same indictment, the court, in its discretion, may quash the indictment, or compel the prosecutor to elect upon which charge he will proceed."

The position of the accused is anomalous. An indictment was found against him containing three counts, each of which is good on its face. But the accused says that, by uniting them all in one indictment, he was charged with three separate and distinct offenses, and it would be unfair and unjust to require him to defend all three in one trial. The prosecuting attorney, with the consent of the court, dismissed two of them and prosecuted only for the third. Now the accused complains of the removal of the unfairness and injustice to which he objected. We know of no precedent for such a complaint, and are unwilling to make one. The action of the trial court, taken at the request of the accused, did him no harm and could not have done him any. When we reach this conclusion on a question involved in a case, our investigation of that question ceases. We are of opinion that where two or more felonies of the same character are charged in different counts of the same indictment, it is within the sound discretion of the trial court to quash the indictment as a whole or any count or counts thereof, or to compel an election on the part of the prosecutor as to what count or counts he will prosecute, having at all times due regard to the substantial rights of the accused and assuring to him a fair trial unembarrassed by confusion of issues or the necessity of defending two or more charges separated by time, place, and circumstances.

In the instant case, the trial court committed no error in compelling an election by the prosecutor.

It is insisted by...