Robinson v. Commonwealth
| Decision Date | 21 November 1949 |
| Court | Virginia Supreme Court |
| Parties | ROBINSON. v. COMMONWEALTH. |
J. R. Robinson was convicted of breaking and entering with intent to commit larceny and of grand larceny in the Circuit Court, Dickenson County, H. W. Smith, J., and he appealed.
The Supreme Court of Appeals, Gregory, J., held that the petitioner could have been found guilty under the single account in the indictment either of breaking and entering with intent to commit larceny or of grand larceny but only one penalty could be affixed to his crime and that instructions to jury that under one count petitioner could be found guilty of both offenses and also inflicted with two separate punishments was error and reversed the judgment and remanded the case for a new trial.
G. Mark French, Clintwood, for plaintiff in error.
J. Lindsay Almond, Jr., Atty. Gen., Ballard Baker, Asst. Atty. Gen., for Commonwealth.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
J. R. Robinson, the petitioner, was convicted in the Circuit Court of Dickenson county of breaking and entering with intent to commit larceny, and of grand larceny. For each offense he was given three years in the penitentiary and was sentenced accordingly.
There is no substantial conflict in the evidence. On the night of March 17, 1949, the petitioner, with three other young men, broke and entered the Clintwood Motor Sales garage in Clintwood, and drove away a new 1949 Ford automobile. He and the others were drinking at the time. The car was not driven by the petitioner but he was an occupant of the car during the entire time it was being operated. The car was driven through several towns and counties in Southwest Virginia and was finally abandoned on the highway near Chilhowie. The sheriff of Dickenson county found the car. Its front end was pointing in an easterly direction and away from Clintwood.
The car was littered up with cigarettes, cigarette ashes, empty packages, match stems, beer caps, and other objects which were found therein. The front door on the right hand side had been staved in, and the rear door on the right had been jammed.
The petitioner testified in the court below. He did not deny his participation in the breaking and entering and in the wrongful taking of the Ford. He also admitted that he was an occupant of the car during the whole time it was being ille-gaily driven. He seeks to excuse himself by claiming that he was drunk and did not know what he was doing, and contends that he might have been guilty of the unauthorized use of the car, but that he was not guilty of its theft.
The assignments of error are that the court improperly permitted an amendment to the indictment; that after the Commonwealth had rested its case it permitted the Commonwealth to introduce additional witnesses; that the court improperly amended the verdict; that the court improperly refused to grant bail to the petitioner; and that the court improperly refused to grant instruction D-6 which would have told the jury that the petitioner might have been found guilty of the lesser offense of the unauthorized use of a motor vehicle under Code 1942 Michie, section 2154(94).
At the beginning of the trial the attorney for the Commonwealth moved to amend the indictment. The original indictment, in part, read: "That J. R. Robinson * * * did break and enter in the night time the Ford garage building belonging to Clint-wood Motor Sales, Inc., at Clintwood, in the said county, with intent the goods and chattels of the Clintwood Motor Sales, Inc., in said Ford garage building belonging to Clintwood Motor Sales, Inc., * * * to take, steal and carry away one 1949 model Ford sedan, the property of Clintwood Motor Sales, Inc., in the said Ford garage building belonging to Clintwood Motor Sales, Inc., * * * of the value of $2,-021.55, unlawfully and feloniously did take, steal and carry away, * * *".
The amendment sought contained the addition of these words, "Ford garage building belonging to", which are placed in the second line, before the words "Clintwood Motors Sales, Inc.", and which are italicized.
The contention of the petitioner in the court below and here is that the amendment made out a new case. His argument is that the indictment as originally found by the grand jury charged only grand larceny but that with the amendment an additional charge was made of housebreaking with intent to commit larceny, an entirely separate offense, and that both charges could not properly be laid in one count of an indictment.
Under Code 1942 Michie, section 4877, it is provided that at any time before the defendant pleads, a defective indictment for a felony may be amended by the court that docs not change the character of the offense charged. We think that the amendment to the indictment in the present case was properly made under that section of the Code. It did not change the offense charged but enlarged on the description and made the charge clearer. It was simply a clarifying amendment and no more.
The indictment prior to the amendment charged that the petitioner "unlawfully and feloniously did break and enter the Clintwood Motor Sales, Inc. * * * to take and carry away one 1949 model Ford * * * in the said garage building * * *." We think this language was sufficient to charge the petitioner with breaking and entering the garage building of that company with intent to commit grand larceny, and that the amendment, while desirable and properly allowed, was not absolutely essential.
The indictment in the same count als6 properly charges the petitioner with grand larceny. However, under the decisions of this court, while two separate and distinct charges, one of housebreaking with intent to commit larceny, and the other of grand larceny, may be made in a single count, and accused may be found guilty of either of the offenses but there can be only one penalty imposed. In Benton's case (Benton v. Com.), 91 Va. 782, at page 788, 21 S.E. 495, 497, we stated the rule to be:
In Clark v. Commonwealth, 135 Va. 490, 115 S.E. 704, the indictment contained a single count and charged the defendant with breaking and entering a certain railroad car with intent to commit larceny therein and the larceny from the car of articles of the value of $156. This court again applied the rule that where an accused is charged with breaking and entering with intent to commit larceny and the commission of the larceny, he might be convicted of either offense but not of both. The court further held that it was permissible to charge in one count not only the breaking and entering with intent to commit larceny but also larceny at the same time, as one continuous act, the larceny in such case being the best evidence of the intent with which the breaking was committed.
In Walters v. Commonwealth, 159 Va. 903, 165 S.E. 495, the indictment contained only one count. It charged housebreaking and larceny. The verdict was a general finding of guilty. It did not specify whether the accused was found guilty of housebreaking or larceny. We held that under such circumstances, under well recognized principles, the finding would be considered as one of guilty of housebreaking, the major offense. See Speer's case, 17 Grat. 570, 58 Va. 570; Vaughan's case (Vaughan v. Com.), 17 Grat. 576, 58 Va. 576, and Myers v. Commonwealth, 132 Va. 746, 111 S.E. 463. But see Benton's case, supra, 91 Va. at pp. 791-792, 21 S.E. 495, where it is held that breaking and entering and grand larceny are equal in grade.
In Branch v. Commonwealth, 184 Va. 394, 35 S.E.2d 593, the accused was charged with two separate crimes, one of breaking and entering in the nighttime with intent to commit larceny, and the other of feloniously stealing, taking and carrying away goods of the value of $1,502. We reiterated the rule that housebreaking with intent to commit larceny, and grand larceny, are distinct offenses under the law, and to each is affixed its own...
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