Satterfield v. Commonwealth

• Decision Date: 08 March 1906
• Citation: 105 Va. 867,52 S.E. 979
• Parties: SATTERFIELD. v. COMMONWEALTH.
• Court: Virginia Supreme Court

52 S.E. 979

105 Va. 867

SATTERFIELD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 8, 1906.

1. Indictment — Allegation of Previous Convictions—Sufficiency.

An indictment for petit larceny alleged that accused had been twice before sentenced for a like offense and described the warrants issued against him for the prior offenses, which charged that accused did unlawfully take, steal, and carry away certain property, without averring that the taking was felonious. Held, that the indictment showed prior convictions of petit larceny, under Va. Code 1904, § 3907, prescribing a punishment for one convicted of petit larceny after prior convictions of a like offense.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 304.]

2. Same.

The procedure provided by Va. Code 1904, §3907, declaring that when a person is convicted of petit larceny, and it is alleged in the indictment and found by the jury that he has been before sentenced for a like offense, he shall be confined in jail not less than 30 days nor more than 1 year, etc., is cumulative, and leaves unimpaired the authority to prosecute an offender independently for successive offenses of petit larceny; and when that is done the punishment for the crime is unaffected by the fact that he may have been previously sentenced, and in such case the punishment is that prescribed by section 3707, and an indictment for the third offense of petit larceny is not bad because it alleges that accused was fined only for the second offense.

3. Same.

As courts will take judicial notice of the charter of the city of Danville and the jurisdiction which chapter 5, § 5, thereof, as amended by Acts 1895-96, p. 596, c. 502, confers on the mayor's court, an allegation in an indictment for petit larceny that accused, formerly convicted of a like offense in the mayor's court of Danville, had been convicted by a court of competent jurisdiction, was sufficient, without showing the fact that it had jurisdiction.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 304.]

4. Same.

An indictment, alleging, for the purpose of subjecting accused to additional punishment, that he had been previously convicted of crime, is good for the crime charged, though the former conviction cannot be shown.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 307.]

5. Criminal Law—Verdict—Sufficiency.

Va. Code 1904, § 3907, provides that for a third offense of petit larceny accused shall be confined in the penitentiary not less than one year, nor more than two years. An indictment for larceny charged that accused had been twice before convicted of a like offense. The verdict was: "We * * * find the prisoner guilty as charged in the * * * indictment, and fix his punishment at one year in the state penitentiary." Held, that the verdict impliedly showed that the jury found that accused had been twice before convicted of a like offense, and was sufficient.

Error to Corporation Court of City of Lynchburg.

James Satterfield was convicted of petit larceny, and he brings error. Affirmed.

James H. Guthrie, for plaintiff in error.

Wm. A. Anderson, Atty. Gen., for the Commonwealth.

WHITTLE, J. At the December term, 1905, of the corporation court of the city of Lynchburg, the plaintiff in error, James Satterfield, was indicted for petit larceny. The indictment also alleged that the accused had been "twice before sentenced in the United States for the like offense, " and proceeded to set out in totidem verbis two warrants against him, with the judgment of conviction and sentence of the mayor of the city of Danville, Va., before whom he was tried, imposing a fine for the commonwealth and city, respectively, indorsed on each.

There was a demurrer to the indictment, which the court overruled. Thereupon the accused pleaded not guilty, and upon the trial of that issue the jury returned a verdict of guilty, and fixed his punishment at one year in the state penitentiary. The court likewise overruled a motion to set aside the verdict as contrary to the law and the evidence, and rendered the judgment under review, sentencing the prisoner in accordance with the verdict of the jury.

The grounds of demurrer to the indictment may be considered in the order in which they are stated in the petition for the writ of error.

It is insisted, in the first place, that, the accused having been indicted for petit larceny, the additional allegation that he had been twice before sentenced in the United States for the "like offense" Is, standing alone, an insufficient averment in a prosecution under section 3907, Va. Code 1904, and that the warrants described in the indictment are not warrants for petit larceny, because they fail to charge the felonious taking of the property alleged to have been stolen.

The precise question involved in this assignment was passed on by this court in the recent case of Jones v. Morris, 97 Va. 43, 33 S. E. 377. At page 48 of 97 Va., page 378 of 33 S. E., the court observes: "For like reasons we are of opinion that the objection to the form of the warrant cannot be maintained. 'A warrant, ' says Bishop (volume 1, p. 187), 'need not set out the crime with the fullness of an indictment, but it should contain a reasonable indication thereof. Minor defects will not render it inadequate as a justification to the officer.' It is truethat the warrant in this case charges that Morris unlawfully did take, steal, and carry away money of the value of $40. It omits to charge that it was done feloniously, and we are not concerned to say that that word ought not properly to have appeared in it, or, if objected to by Morris, the warrant might not, for that reason, have been considered defective. The fact remains that no objection was taken, that the whole subject was investigated, and judgment of acquittal rendered. That judgment, we repeat, is a complete bar for any further prosecution for the same offense."

Wharton, in his work on Criminal Pleading and Practice (section 200), states the doctrine as follows: "The word 'feloniously' was at common law essential to all indictments for felony, whether at common law or statutory, although, the reason for the term being purely arbitrary, it is no longer necessary unless prescribed by statute, or unless describing a common-law or statutory felony." See, also, 1 Bishop's Crim....