Shaw v. Commonwealth

• Decision Date: 06 December 1906
• Court: Virginia Supreme Court
• Parties: HATCHER & SHAW . v. COMMONWEALTH.

55 S.E. 677

106 Va. 827

HATCHER & SHAW .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 6, 1906.

1. Indictment — Amendment — Time of Offense.

Where an indictment alleged an unlawful sale of intoxicating liquor on a certain date, there was no error in ordering the indictment to be taken to the grand jury and amended by adding "and at divers other times within the twelve months last past."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 513.]

2. Criminal Law — Trial — Reception of Evidence—Election Between Acts Proved.

In a prosecution for the unlawful sale of intoxicating liquor, where several distinct acts were proved, the state should be required to elect on which act it would rely for conviction before the defense is required to introduce its evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1580-1583.]

Error from Corporation Court of Danville.

Hatcher & Shaw were convicted of the unlawful sale of intoxicating liquors, and bring error. Reversed, and new trial granted.

Withers & Green and B. H. Custer, for plaintiff In error.

The Attorney General and Wm. A. Anderson, for the Commonwealth.

BUCHANAN, J. The plaintiffs in error were indicted at the June term, 1906, of the corporation court for the city of Danville for selling liquor at their place of business in that city without a license to four persons, who were named, and others, "on the— day of March, in the year 1906." After issue had been joined upon the plea of notguilty, the jury impaneled and sworn, and the attorney for the commonwealth was making his opening statement to them, the court, upon his motion, over the objection of the defendants, ordered the indictment to be taken to the grand jury, which was still in session and was the same grand jury which had brought in the indictment, for the purpose of amending the same by adding the words, "and at divers other times within the twelve months last past, " immediately after the words, "on the —day of March, in the year 1906." The indictment was so amended and returned into court. After the defendants' motion to quash and their demurrer to the indictment as amended were overruled by the court, they pleaded not guilty, upon which plea issue was joined, the same jury was sworn, and the trial proceeded with, which resulted in a verdict finding the defendants guilty as charged in the indictment, and fixing their fines at $25 each. The defendants moved the court to set aside that verdict and grant them a new trial, and also to arrest the judgment, but the court overruled these motions, entered up judgment for the fines assessed, and also imposed a further punishment of three months' confinement in the county jail. To that judgment this writ of error was awarded.

The first error assigned is to the action of the court in permitting the indictment to be amended.

Section 3999 of the Code provides that "the court may in cases of misnomer occurring before or in the course of a trial, forthwith cause the indictment or accusation to be amended according to the fact." But we have no other statute authorizing indictments to be amended, and section 3999, it is conceded, has no application to this case.

It is said by Mr. Bishop, in his new Criminal Procedure, § 709, that the ancient practice, where an indictment appeared to be imperfect was " 'to award new process to the grand jury, if the court sat in the same county, to come into court to amend it, ' or, by whatever means assembled, this body may find a second indictment on the original evidence. Or if, at the arraignment, the grand jurors are present in court, they may there cure by amendment any defects disclosed by plea in abatement."

In the case of Commonwealth v. Drew, 3 Cush. (Mass.) 279,, Chief Justice Shaw said: "Where it is found that there is some mistake in an indictment, as a wrong name or addition, or the like, and the grand jury can again be appealed to, as there can be no amendment of an indictment by the court, the proper course is for the grand jury to return a new indictment avoiding the defects of the first."

Where the grand jury which brought in the indictment has been discharged, another grand jury may bring in another indictment for the same offense, for the finding of one indictment is no bar to the finding of another for the same crime. The accused cannot, of course, be tried upon both, but the commonwealth may elect on which it will proceed; the better practice is, however, to withdraw the first and proceed upon the second. Stuart's Case, 28 Grat 950, 966, 967; 1 Bish. Crim. L. (7th Ed.) § 1014.

The action of the court in permitting the indictment to be amended and proceeding upon it, after it was returned into court, as if it were a new indictment was, in effect, a discontinuance or an adandonment of the prosecution on the first or original indictment. The defendants moved to quash the new or amended indictment and demurred to it; upon the overruling of their motion to quash and their demurrer, they pleaded not guilty, upon which plea issue was joined, the jury was again sworn and the trial proceeded with. Whether the commonwealth would have had the right, with the consent of the court, to enter a nolle pros, or abandon the prosecution on the original indictment, or what effect such abandonment would have had on the rights of the defendants if both the original and the amended or new indictment had been for the same offense need not be...