Myers v. Commonwealth
| Citation | 148 Va. 725 |
| Court | Virginia Supreme Court |
| Decision Date | 16 June 1927 |
| Parties | J. H. MYERS, ALIAS DUTCH MYERS v. COMMONWEALTH. |
1. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Indictment Charging Assault and Robbery — Verdict of Assault with Intent to Maim, Disfigure, Etc. — Responsiveness of Verdict to the Issue — Case at Bar. — In the instant case, the indictment charged a violent assault, robbery from the person by violence and larceny. The jury found the defendant guilty of an assault with intent to maim, disfigure, disable and kill.
Held: That the indictment was insufficient to support the conviction, as assaults with intent to maim, etc., are different crimes from any of those charged in the indictment and are differently punished.
2. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Crime not Substantially Charged in the Indictment — Section 4918 of the Code of 1919. — Under section 4918 of the Code of 1919, one indicted for felony may be convicted of part of an offense charged but the statute does not apply unless the particular crime of which one was convicted was substantially charged in the indictment.
3. MAIMING ACT — Indictment — Intent — Conviction. — An indictment under the maiming act must charge the intent to maim, disfigure, disable or kill, because such intent is an essential element of the crime.
4. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Misdemeanor — "Feloniously" — Surplusage. — The use of the word "feloniously" in an indictment charging an assault, a misdemeanor, is either surplusage, or will be construed to mean "with criminal intent."
5. JEOPARDY — Indictment for Higher Crime — Conviction of Lower Crime Included in the Higher — Case at Bar. — In the instant case, defendant was found guilty of malicious assault, with intent to maim, disfigure, disable and to kill. The indictment charged a violent assault, robbery from the person by violence and larceny. It was argued that under the indictment, if accused was either convicted or acquitted of the robbery from the person by violence, he could not again be prosecuted for the same assault. While this was true, it was not because accused could have been convicted of a crime not charged (assault with intent to maim, etc.), but because he cannot be put in jeopardy twice for the same offense, which may include several crimes.
6. JEOPARDY — Indictment for Higher Crime — Conviction of Lower Crime Included in the Higher. — Wherever a statute permits a conviction of any lower offense necessarily included in a higher one with which the defendant is charged, a conviction or acquittal of such higher offense is a bar to a subsequent prosecution for any lower offense necessarily included in it, and, e converso, a conviction for any lower offense necessarily included in the higher is a bar to a subsequent prosecution for such higher offense.
7. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Crime Not Substantially Charged. — No court has ever held that one could be convicted of a crime which was not substantially charged.
8. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Intent. — When the definition of a crime includes a specific state of mind, or a specific intent, such intent must be alleged in the indictment.
Error to a judgment of the Hustings Court of the city of Roanoke.
The opinion states the case.
Brown & Price, for the plaintiff in error.
John R. Saunders, Attorney General, and Leon M. Bazile and Lewis H. Machen, Assistant Attorneys General, for the Commonwealth.
PRENTIS, P., delivered the opinion of the court.
The accused has been found guilty of malicious assault, with intent to maim, disfigure, disable and kill, and sentenced to three years confinement in the penitentiary.
He is here assigning as error that the indictment does not charge him with the crime of which he has been convicted, and is, therefore, insufficient to support the conviction. The trial court took a different view, and instructed the jury that they might so find. A motion of the accused for a new trial, as well as his motion in arrest of judgment upon the ground that the verdict was not responsive to the issues raised by the indictment and plea of not guilty, were also overruled.
The indictment charges (omitting some of the formal matter) that the accused "on one E. B. Dunford, did feloniously make an assault, and him, the said E. B. Dunford, in bodily fear, did then and there feloniously put; and divers monies of the true and lawful currency of the United States of America (the exact denomination and description thereof being to the grand jurors unknown) amounting to the sum of $55.00, and of the value of $55.00, of the money and property of the said E. B. Dunford, from the person and against the will of the said E. B. Dunford, by beating and wounding the said E. B. Dunford with bottles and sticks, with which the said J. H. Myers, alias Dutch Myers, was then and there armed, did unlawfully, feloniously and violently take, steal and carry away against the peace and dignity of the Commonwealth of Virginia."
Analyzing this indictment, it charges a violent assault, with bottles and sticks, robbery from the person by violence, and larceny. Unlawful or felonious assaults with intent to maim, disfigure, disable or kill are different crimes from any of those charged and are differently punished. It seems to us that the mere comparison of the verdict with the indictment is sufficient to demonstrate the illegality of this conviction. In view, however, of the earnestness with which the Attorney General seeks to maintain it, we will review his contentions.
The singleness of the question is conceded, and it is insisted that under Code, section 4918, the indictment is sufficient to sustain the conviction.
That section reads:
It is observed that under this statute one indicted for felony may be convicted of part of the offense charged, only if the part of which he is convicted "be substantially charged in the indictment." These quoted words are significant and controlling. The statute does not apply unless the particular crime of which one is convicted is substantially charged in the indictment. It could not be otherwise, because under the Bill of Rights the accused "hath a right to demand the cause and nature of his accusation." If every word of this...
To continue reading
Request your trial
-
State ex rel. Johnson v. Hamilton
...the first are necessarily included in the elements of the second. State v. Cross, 44 W.Va. 315, 29 S.E. 527 (1898); Myers v. Commonwealth, 148 Va. 725, 138 S.E. 483 (1927); cf. State v. Wisman, 93 W.Va. 183, 116 S.E. 698 (1923). That is certainly not the case, however, with cases involving ......
-
Hudgins v. Com., Record No. 0078-02-1.
...of petit larceny of the same bicycle. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Myers v. Commonwealth, 148 Va. 725, 729-30, 138 S.E. 483, 484 (1927). The Commonwealth could not later, consistent with double jeopardy protections, prosecute him for larceny, wheth......
-
Hudgins v. Com.
...out of this incident then pending against him, constituted an acquittal for petit larceny of that bicycle. See Myers v. Commonwealth, 148 Va. 725, 729-30, 138 S.E. 483, 484 (1927) (stating principle that acquittal of greater offense constitutes acquittal of all lesser offenses and bars subs......
-
Blake v. Commonwealth
...01000195/Centricity/Domain/9/Chapter8/8–17.pdf (last visited October 9, 2014).3 Cf. Myers v. Commonwealth, 148 Va. 725, 729, 138 S.E. 483, 484 (1927) ; Morris v. Commonwealth, 145 Va. 880, 881–82, 134 S.E. 567, 568 (1926) (where the defendant was charged with a misdemeanor, inclusion of the......