Smith v. Commonwealth
Decision Date | 15 June 1933 |
Citation | 160 Va. 943 |
Court | Virginia Supreme Court |
Parties | ANDY SMITH v. COMMONWEALTH. |
1. WARRANTS — Elements of Offense. — In a warrant the necessary elements of the offense must be stated with some degree of particularity.
2. WARRANTS — Warrant Charging Violation of Section 36 of the Code of 1930 — Trial for Violating the Game Laws — Case at Bar. — In the instant case defendant was charged in a warrant with violating section 36 of the Code of 1930 by hunting during the closed season. Section 36 of the Code of 1930 has as its subject the appropriation of glebe lands and church property, which is wholly foreign to the present case, a trial for violating the game laws. As pointed out by the Attorney-General, the statutory reference was intended to be to section 36 of chapter 247 of the Acts of 1930.
Held: That the Supreme Court of Appeals must take the warrant as they find it.
3. WARRANTS — Elements of Offense — Warrant Charging Hunting during Closed Season. — A warrant charged the accused with the violation of section 36 of the Code of 1930 by hunting during the closed season. Under section 4989 of the Code of 1930, the circuit court had authority to amend the warrant, or, if deemed proper, to dismiss it and issue one under the hand of the judge. This was not done and it was the justice's warrant which was before the Supreme Court of Appeals for construction.
Held: That the warrant was fatally defective as legal notice to the accused of what the offense was with which he was charged.
4. WARRANTS — Description of Offense. — Warrants are not required to describe the offense with the particularity demanded of indictments, but they still must recite the offense charged.
5. APPEAL AND ERROR — Indictment Charging No Offense — Setting Aside Verdict of Conviction. — Where no offense is charged in an indictment, the appellate court will reverse the judgment of conviction of the trial court, set aside the verdict of the jury, and award a new trial, even though no motion was made in arrest of judgment.
Error to a judgment of the Circuit Court of Buckingham county.
The opinion states the case.
John B. Boatwright, for the plaintiff in error.
John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.
This prosecution has to do with an alleged violation of the game laws of Virginia.
The warrant issued by the justice of the peace is as follows: "COUNTY OF BUCKINGHAM, to-wit: "To A. J. Stegar, a constable of the said county:
"February 24, 1931; case continued on motion of deft. till March 5, 1931, at 10 A.M., at Buckingham Court-house."
The trial justice found the defendant guilty and fixed his punishment at a fine of $10 and costs. The defendant appealed the case to the circuit court, where there were two trials. The first resulted in a disagreement of the jury. In the second trial the defendant was found guilty and the penalty imposed was a fine of $25.
The warrant set forth above is the basis of the action. The necessary elements of the offense must be stated with some degree of particularity. The defendant is charged with violating section 36 of the Code of Virginia. When we turn to that section of the Code we find that its subject is the appropriation of glebe lands and church property, which, of course, is wholly...
To continue reading
Request your trial-
Bissell v. Com.
...Palmer, 93 Va. 159, 173, 24 S.E. 930, 57 Am.St.Rep. 795, 31 L.R.A. 822; Commonwealth v. Doss, 159 Va. 968, 167 S.E. 371; Smith v. Commonwealth, 160 Va. 943, 169 S.E. 550; 19 M.J., Warrants, § 3, p. The defendant did not testify nor did she introduce witnesses in her behalf. Five witnesses w......
-
Milteer v. Com.
...501, 126 S.E. 207, 207 (1925); see also Commonwealth v. Doss, 159 Va. 968, 973-74, 167 S.E. 371, 373 (1933); Smith v. Commonwealth, 160 Va. 943, 946, 169 S.E. 550, 551 (1933). [2] Code § 59.1-41.3 makes it "unlawful for any person to knowingly sell, rent, cause to be sold or rented, or poss......
-
Robinson v. Com.
...of the state statute, before the trial proceeded. Malouf v. City of Roanoke, 177 Va. 846, 852, 853, 13 S.E.2d 319; Smith v. Commonwealth, 160 Va. 943, 946, 169 S.E. 550. But this the trial court did not do. Instead, the court denied the Commonwealth's motion to amend the warrant so as to co......