Randall v. Commonwealth

• Decision Date: 14 January 1874
• Citation: 65 Va. 644
• Parties: RANDALL v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

65 Va. 644

RANDALL v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 14, 1874

1. All offences for which the penalty is confinement in the penitentiary are felonies, and the indictment for such an offence must describe it as having been done " feloniously."

2. Upon an indictment under the act concerning malicious and unlawful shooting, stabbing, & c., (Code of 1860, ch. 171, § 9,) which charges that the prisoner did unlawfully shoot, &amp c., with set purpose and malice aforethought to kill and murder, & c., the jury find the prisoner guilty of malicious shooting, without saying who he shot, and fix the term of his imprisonment in the penitentiary at five years. No judgment can be entered on the verdict.

3. The indictment and the verdict being fatally defective, the judgment may be reversed by the appellate court, though no motion in arrest of judgment was made in the court below.

4. The proceedings in the case will not prevent the finding of another indictment against the prisoner for the same offence after the attorney for the Commonwealth has, with the consent of the court, entered a nolle prosequi upon the pending indictment.

At the November term 1873 of the County court of Chesterfield, the grand jury found an indictment against Henry Randall, that " on the 23d day of August 1873, in the county aforesaid, with malice aforethought, in and upon one J. S Moore, the said Henry Randall, being then and there armed with a dangerous weapon called a pistol, did then and there unlawfully shoot and wound him the said J. S. Moore, with intent him the said J. S. Moore, with set purpose and malice aforethought, to kill and murder, against the peace," & c.

The case was sent to the Circuit court of the county, and came on for trial in that court at its November term, when the jury found a verdict as follows: " We the jury find the prisoner, Henry Randall, guilty of malicious shooting, and fix the term of imprisonment in the public jail and penitentiary house at five years." There was a motion in arrest of judgment, which was overruled; and the prisoner was sentenced by the court in accordance with the verdict. And he thereupon applied to this court for a writ of error; which was allowed.

S M. Page, for the prisoner.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE, P.

The offence for which the plaintiff in error was intended to be prosecuted in this case is the offence declared by the Code of 1860, chapter 191, section 9, concerning malicious and unlawful shooting, stabbing, & c. The jury, by their verdict, found the prisoner " guilty of malicious shooting," and fixed his term of imprisonment in the penitentiary at five years, to which he was accordingly sentenced. And he applied for and obtained from this court a writ of error to the judgment. In his petition for the writ he assigned sundry errors in the said judgment, one of which is, that the verdict found him guilty of no offence at all, having found him guilty merely " of malicious shooting." The attorney-general rightly admitted that this error was well assigned, and that for this error the judgment would have to be reversed. If this were the only error in the case it would have to be remanded to the Circuit court for new trial to be had therein upon the said indictment.

But the indictment itself is fatally defective, as an indictment for felony, in not charging the offence to have been done " feloniously; " and this also is assigned as an error in the petition. We think this error, too, is well assigned. There are certain technical terms of description required to be used...