Shelton v. Commonwealth

• Decision Date: 08 December 1892
• Citation: 16 S.E. 355,89 Va. 450
• Court: Virginia Supreme Court
• Parties: SHELTON. v. COMMONWEALTH.

16 S.E. 355

89 Va. 450

SHELTON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 8, 1892.

Burglary—Indictment—Allegation as to Time — Omission of Names of Witnesses—Directory Statute — Continuance in Absence of Defendant.

1. Where an indictment for burglary, in the usual form, alleges that the offense was committed on a certain day, "about the hour of twelve o'clock in the night of that day, " it clearly means in the night after sundown of that day, and is sufficiently certain as to time.

2. It is not essential to the validity of an indictment that the names of the witnesses on whose evidence it is found be written at the foot of the indictment, since the statute requiring them to be so written is directory only.

3. Where the record in a burglary case shows that it was once continued until the next day, when "this case was continued for the defendant, " and there is nothing in the record to show that defendant was personally present at the time of either continuance, the verdict and judgment of conviction must be set aside.

4. In such case the court cannot presume that the trial court acted rightly, and that the essential part of the record was inadvertently omitted by the clerk.

Error to Prince William county court.

Ephraim Shelton was convicted of burglary, and brings error. Reversed.

C. E. Nicol, for plaintiff in error.

B. Carter Scott, for the Commonwealth.

Lewis, P. The prisoner was indicted on the 7th of December, 1891, in the county court of Prince William county, for burglary. On the same day he demurred to the indictment, but the demurrer was overruled; whereupon, being arraigned, he pleaded not guilty. The case was then, by consent, continued until the next term, and the prisoner was remanded to jail. On the 4th of January, 1892, the case, as the record states, was continued until the next morning, the 5th of January; and on the last-mentioned day the following entry was made on the record, viz., "This case was continued for the defendant." There is nothing, however, in the record to show that the prisoner was personally present in court on either of the two last-mentioned days. At the ensuing February term he was tried, and sentenced, in accordance with the verdict, to confinement in the penitentiary for five years.

1. The first assignment of error, vis., that the demurrer to the indictment ought to have been sustained, is not well taken. The indictment follows the usual form in like cases, and is, we think, sufficient. The principal points of objection to it are (1) that it leaves it uncertain whether the alleged offense was committed at midnight, at the commencement or termination of the day mentioned, which points of time are 24 hours apart; and (2) that the names of the witnesses upon whose evidence the indictment was found are not written at the foot of the indictment, as the statute requires. As to the first point, the allegation is that the offense was committed "on the 10th of November, 1891, about the hour of twelve o'clock in the night of that day, " which clearly means in the night after sundown of that day. And as to the second point, it is enough to say that the statute, now carried into section 3984 of the Code, requiring the names of the witnesses to be written at the foot of the indictment, is directory merely. In Dever's Case, 10 Leigh, 685, it was held by the general court that the statute requiring the title or profession of the prosecutor to be written at the foot of the indictment was only directory to the officers of the court, and therefore that the failure to comply with the requisition of the statute in that case was no ground for quashing the indictment. And in Williams' Case, 5 Grat. 702, it was decided, on the authority of Dever's Case, that the omission to write at the foot of the indictment the name of the witness on whose evidence it was found was no reason for quashing it. In State v....