Richards v. Commonwealth
| Decision Date | 19 November 1885 |
| Citation | 81 Va. 110 |
| Parties | RICHARDS v. COMMONWEALTH. FRY v. COMMONWEALTH. FAUVER v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to judgment of circuit court of Shenandoah county, refusing a writ of error and supersedeas to a judgment of the county court of said county, rendered August 11th, 1884 sentencing the plaintiffs in error, John C. Richards, B. F Fry and A. B. Fauver, to confinement in the penitentiary for the period of seven years, in accordance with the verdict of the jury at the trial of an indictment against them for arson. The first count of the indictment charged them with feloniously and maliciously burning, in the night time, the dwelling-house of William Windle. The second count charged them with so burning in the night time " a certain other building, then and there of just value, to-wit," & c. Defendants, after pleading not guilty, moved to quash the indictment; which motion the court overruled. The other points raised, and motions made, the opinion states.
James H. Williams, for the plaintiffs in error.
Attorney-General F. S. Blair and H. C. Allen, for the Commonwealth.
The case is as follows: The plaintiffs in error were indicted in the county court of Shenandoah county, at the August term of said court, 1884, for burning a dwelling-house on the 18th day of October, 1881, in the night time, and for burning a certain other house, not described or designated, in the night time.
Upon their arraignment the accused severally pleaded not guilty. The accused then moved the court to quash the indictment, and entered a demurrer to the indictment, and to each count thereof, which were received by the court, although made after the plea of not guilty, time being taken to consider of them until the following day, and a venire of twenty-four persons ordered to be summoned to try the case.
On the following day the court overruled the motion to quash the indictment, and overruled the demurrer, and the accused excepted.
Of the venire summoned to try the case, twenty-four were obtained free from exception, and sixteen persons selected therefrom for the trial of the case by lot.
The accused challenged the array and moved the court to quash the panel of sixteen jurors; which motion the court overruled, and the accused excepted; whereupon four were stricken off by the accused and the remaining twelve sworn as the jury to try the case.
The jury was then charged by the clerk that the law ruling the case, if they found the accused guilty, was the first section of chapter three of the new Criminal Code, and section five of the act of April 21st, 1882, the said sections being read in full by the clerk; to which the accused excepted.
The jury, having heard the case, found a joint verdict of guilty, and fixed the imprisonment of the accused in the penitentiary at seven years; and the accused moved the court to set aside the verdict and grant them a new trial, and moved in arrest of judgment; both of which motions the court overruled, and the accused again excepted. And judgment was entered by the court severally sentencing the accused to seven years imprisonment.
Whereupon the accused applied for a writ of error to the circuit court, which, being refused, was allowed by one of the judges of this court.
The first section of chapter three of the Criminal Code (Acts 1877-8, p. 286), provides as follows:
Section five provides: " If a person maliciously burn any building, the burning whereof is not punishable under any other section of this chapter, he shall, if the building, with property therein, be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years."
The indictment in this case contains two counts--the first under the first section just cited, and the second count drawn under the fifth section cited above--and the clerk, under the direction of the court, so charged the jury at the trial.
The first count is admitted to be unexceptionable. The motion to quash and the demurrer were addressed to the said second count, which is as follows: " And the jurors aforesaid, on their oaths aforesaid, do further present, that the said John C. Richards, Benjamin F. Fry, and Addison Buchanan Fauver, on a certain day, to-wit: on the 18th day of October, in the year 1881, in the night time of that day, in the county aforesaid, a certain other building then and there of great value, to-wit: of the value of one thousand dollars, being the property of," & c.
This second count is defective for uncertainty, and charges no offence under our statute. The punishment prescribed by that section is provided for the burning of other buildings not mentioned or provided for in any of the other sections of the statute; and the said section does not apply to any building enumerated in any of the other sections; and, again, if it did, the accused are entitled to be informed what certain other building they are accused of burning in the night time, of the value of one thousand dollars.
This is not denied; but it is insisted, on the part of the Commonwealth, that the motion to quash and the demurrer came too late, having been made after the plea of not guilty.
A motion to quash the indictment ought to be made at an early stage of the cause. There are cases and dicta which seem to go fully to the point that this motion cannot be made after issue joined on the plea of not guilty, or, perhaps, after the plea itself is entered. 1 Starkie Crim. Pl., 2d ed., 299; The State v. Bullingham, 15 Me. 104; Nichols v. The State, 2 Southard, 539. And it is not a motion which will ordinarily be entertained while the case is on trial.
In the case of Nichols v. The State, 2d Southard, supra, it was laid down that to make way for a motion to quash, the court will always permit the plea of not guilty to be withdrawn.
The true rule appears to be, says Mr. Bishop, that there...
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State v. Medley
...State v. Flint, 52 La. Ann. 62, 26 South. 913; State v. Bryce, 11 S. C. 342; Hall v. Commonwealth, 80 Va. 555: Richards v. Commonwealth, 81 Va. 110; Jones et al. v. Commonwealth, 100 Va. 842, 41 S. E. 951; 12 Enc. PI. & Pr. 282; 24 Cyc. 211. A further objection is urged that the list of jur......
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State v. Medley
... ... Williams, 30 La. Ann. 1028; State v. Flint, 52 ... La. Ann. 62, 26 So. 913; State v. Bryce, 11 S.C ... 342; Hall v. Commonwealth, 80 Va. 555; Richards ... v. Commonwealth, 81 Va. 110; Jones et al. v ... Commonwealth, 100 Va. 842, 41 S.E. 951; 12 Enc. Pl. & Pr. 282; 24 Cyc ... ...
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Owen v. White, 11231.
...the second count does not cure the defect.' See, also, State v. Rowe, 142 Mo. 439, 44 S.W. 266; Tobin v. People, 104 Ill. 565; Richards v. Commonwealth, 81 Va. 110; Commonwealth v. Lowrey, 158 Mass. 18, 32 N.E. 940; State v. Rounds, 76 Me. 123." ATKINSON, Justice (dissenting). By the verdic......
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Jones v. Commonwealth
...if one of the formalities which it prescribes may be disregarded, all may be set at naught." This decision, and the decisions in Richard's Case, 81 Va. 110, and Honesty's Case, Id. 283, to the same effect, doubtless gave rise to the amendment of our statute in regard to irregularities in im......