Mitchell v. Commonwealth

• Citation: 141 Va. 541
• Parties: MITCHELL v. COMMONWEALTH.
• Decision Date: 19 March 1925
• Court: Virginia Supreme Court

Page 541

141 Va. 541

MITCHELL v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

March 19, 1925.

Case submitted for decision before Judge Kelly qualified.

1. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Objection to Joinder of Two or More Distinct Felonies in Different Counts. — 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.

2. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Joinder of Two or More Distinct Felonies in Different Counts — Discretion of Trial Court — Election — Quashing Indictment. — 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.

3. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Joinder of Two or More Distinct Felonies in Different Counts — Election — Case at Bar. — In the instant case an indictment, good on its face, containing three counts was found against accused. Accused objected that by uniting the counts in one indictment he was charged with three separate and distinct offenses, and that it would be unfair 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. To this accused again objected claiming that it was a case not for election, but for quashing.

Held: That the action of the trial court, taken at the request of the accused, did accused no harm and could not have done him any.

4. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Charging Distinct Felonies in One Count — Substituting "or" for "and" — Case at Bar. — In the instant case a count charged accused, a bank officer, with false entries with intent to conceal the true state of his account with the bank, and to defraud the bank and to obtain money to which he was not legally entitled. It was objected by accused that the count charged three distinct felonies. The count charged but a single transaction, one act of endeavor on the part of the accused, and that was the entry on the books of the bank.

Held: That as all of the intents were charged in a single count, in the conjunctive, only one offense was charged; but the proof of the entry, with any one of the intents, would be sufficient to convict.

5. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Statute in the Disjunctive — Indictment in the Conjunctive. — If a statute makes it a crime to do this, or that, or that, mentioning several things disjunctively, the indictment may, indeed, as a general rule, embrace the whole in a single count; but it must use the conjunctive "and" where "or" occurs in the statute, else it will be defective as being uncertain.

6. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Duplicity — Quaere. — Whether duplicity is any longer available in a criminal case in Virginia, quaere?

7. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Variance. — The accused cannot be convicted unless the evidence brings him within the offense charged in the indictment. Not only must the statute create an offense, but the indictment must charge the very offense for which a conviction is asked.

8. PLEADING — Proof — Surplusage. — It is elementary that what need not be proved need not be alleged; but sometimes the pleader goes beyond what is necessary and alleges something that it was not necessary to allege, and the result is that he must prove what he has alleged unless the unnecessary allegation can be rejected as surplusage.

9. SURPLUSAGE — Adjective — Descriptive Words. — If a single adjective describes or qualifies a necessary part of the indictment, it cannot be rejected as surplusage. "Descriptive allegations" are not confined to concrete things or persons. If the unnecessary word or words inserted in the indictment describe, limit, or qualify the words which it was necessary to insert therein, then they are descriptive of the offense charged in the indictment and cannot be rejected as surplusage. The offense as charged must be proved.

10. BANKS AND BANKING — Section 4457 of the Code of 1919 — Entries with Intent to Defraud — Indictment — Allegation that Entry was False. — Section 4457 of the Code of 1919 condemns the making of any entry by a bank officer in any account kept in the bank, with intent to defraud, etc. In the instant case the indictment went further than the statute and charged that the accused made a false and fraudulent entry in his ledger account with intent to conceal the true state of his account and to defraud, etc.

Held: That under the indictment the Commonwealth was bound to show that the entry was false and fraudulent.

11. BANKS AND BANKING — Section 4457 of the Code of 1919 — Entry with Intent to Defraud — Instructions — False and Fraudulent Entries. — An indictment under section 4457 of the Code of 1919 charged a false and fraudulent entry by accused. An instruction followed the language of the statute and ignored the fact that there could be no verdict of guilty unless the entry was false and fraudulent as charged in the indictment. The instruction would have been free from objection if the indictment had followed the statute, but not having done so, it was erroneous because it did not properly apply the evidence to the charge in the indictment. It directed a verdict of guilty whether the entry was true or false.

12. CHARACTER IN EVIDENCE — General Reputation. — There is a vast difference between reputation and character, and our chief means of ascertaining character is by evidence of general reputation. Few men know the characters of men accused of crime, but evidence of general reputation is received because of its tendency to show probable character. The limitations of human nature are such that we cannot prove character.

13. CHARACTER IN EVIDENCE — Instructions — Good Character — Reasonable Doubt. — It is not error in a criminal case to refuse an instruction that good character alone and of itself is sufficient to raise a reasonable doubt of the guilt of the accused.

14. CHARACTER IN EVIDENCE — Weight a Question for Jury. — The character of a prisoner, when proven, whether good or bad, is a fact to be considered by the jury, but its weight as affecting the guilt or innocence of a prisoner is a matter for the determination of the jury, in connection with the other facts proven in the case.

15. INSTRUCTIONS — Reasonable Doubt — Doubtful Case — Good Character. — In a criminal case the court instructed the jury that if they have a doubt as to any material fact necessary to a conviction in this case, then evidence of the good character of the accused may resolve such doubt into a reasonable doubt, and if the jury have such a reasonable doubt as to any element of the offense charged necessary to a conviction, they should give the accused the benefit of such doubt and acquit him; but if upon the whole evidence in the case the jury believe that the accused is guilty beyond all reasonable doubt, then the jury should find the accused guilty.

Held: Erroneous in that it restricted the consideration of the character evidence to a doubtful case. Furthermore, upon the hypothesis stated in the first part of the instruction the accused was entitled to a verdict of acquittal. Moreover, the instruction was in conflict with another instruction given for the accused; and in any view the instruction may have misled the jury.

16. BANKS AND BANKING — Entries with Intent to Defraud — Opinion Evidence. — In the instant case, a prosecution under section 4457 of the Code of 1919 against a bank officer for entries with intent to conceal the true state of his account, a witness was asked whether or not the effect of such entries would be to conceal the true state of the account of accused, to which witness replied "Yes."

Held: Error, because whether an expert or not, it called for the opinion of the witness upon what was practically the very issue to be tried by the jury, and not what was disclosed by the books of the bank.

Error to a judgment of the Hustings Court of the city of Richmond.

The opinion states the case.

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

John R. Saunders, Attorney-General, Leon M. Bazile, Assistant Attorney-General, and Lewis H. Machen, Assistant Attorney-General, for the Commonwealth.

BURKS, J., delivered the opinion of the court.

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 eighteen counts, but when the case was called for trial the prosecuting attorney entered a nolle prosequi to the last fifteen counts, leaving the first three counts; the first of which charged the larceny of $19,000.00, the property of the Mechanics Savings Bank; the second the larceny of $19,000.00, 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...