Snead v. Smyth, 7964.

• Decision Date: 16 December 1959
• Docket Number: No. 7964.,7964.
• Citation: 273 F.2d 838
• Parties: John Lewis SNEAD, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

273 F.2d 838 (1959)

John Lewis SNEAD, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.

No. 7964.

United States Court of Appeals Fourth Circuit.

Argued November 2, 1959.

Decided December 16, 1959.

W. A. Hall, Jr., Richmond, Va., for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (A. S. Harrison, Jr., Atty. Gen. of Virginia, on brief), for appellee.

Before SOPER, HAYNSWORTH, and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

John Lewis Snead appeals from the dismissal by the District Court of his petition for habeas corpus, wherein he sought release from prison on the ground that he was illegally detained in the Virginia State Penitentiary under a void judgment of the Circuit Court of Albemarle County, Virginia, which sentenced him to imprisonment for five years upon a conviction of grand larceny. His principal contentions are that the State court lacked jurisdiction of his case because (1) the indictment was void and (2) his attorney failed to raise certain questions at the trial and thereby he was deprived of the effective representation by counsel to which he was entitled under the Federal Constitution.

The indictment charged that the defendant did feloniously and unlawfully break and enter the house of Lloyd G. K. Carr with intent to commit larceny therein and did then and there unlawfully and feloniously take, steal and carry away personal property of the value of more than $50 of the goods and chattels of Lloyd G. K. Carr with intent to deprive the owner of same.

Upon this indictment the defendant was tried and found guilty of grand larceny and sentenced to serve five years in the penitentiary. Thereafter he was indicted in the Circuit Court of Nelson County, Virginia, for breaking and entering with intent to commit larceny and pleaded guilty to the charge and was sentenced to serve one year in the penitentiary. He was confined in a State road camp and escaped therefrom, and for this offense he was indicted, pleaded guilty, and was sentenced by the Circuit Court of Pittsylvania County, Virginia, to serve one year in the penitentiary, the sentence to run concurrently with the sentences in the two previous cases.

The first contention upon the present appeal is that the indictment is insufficient and void because the property is merely described as personal property of the value of more than $50 of the goods and chattels of Lloyd G. K. Carr without more particular description or identification of the goods. It is contended that by reason of this deficiency, the indictment stated no crime at all and was completely void and therefore the court was without jurisdiction. The Virginia decisions do not support the contention. They hold, as happened in the pending case, that an indictment may charge both statutory house breaking and larceny in the same count and that the defendant may be convicted and sentenced thereunder for either crime, but not for both, so that only one penalty can be imposed. Clark v. Commonwealth, 135 Va. 490, 115 S.E. 704; Wesley v. Commonwealth, 190 Va. 268, 56 S.E.2d 362. It is true that it is generally held that an indictment for larceny should contain a description of the goods stolen sufficient to identify the property and to advise the defendant with reasonable certainty as to the property meant and enable the jury to decide whether the property taken is the same as that upon which the indictment was found. 32 Am.Jur., Larceny, § 106; 27 Am.Jur., Indictments, § 83; Edwards v. United States, 4 Cir., 266 F. 848. Under this rule the indictment in this case was technically insufficient but it does not follow that the defect was so grave as to deprive the court of jurisdiction to try the case. In Virginia, as elsewhere, it is established that there is a marked difference between an indictment which is merely defective, so that it may be amended or the defendant may be given further information by a bill of particulars, and an indictment so fatally invalid that a prosecution cannot be based upon it. Evans v. Commonwealth, 183 Va. 775, 780, 33 S.E.2d 636.

In Livingston v. Commonwealth, 184 Va. 830, at page 836, 36 S.E.2d 561, at page 564, the court said:

"In this jurisdiction there is no constitutional requirement that prosecutions for felony be by indictment. The requirement is merely statutory. See Code sec. 4866. This requirement may be waived. See Hanson v. Smyth, 183 Va. 384, 32 S.E.2d 142.

"Generally in most jurisdictions when an indictment identifies the charge against the accused so that his conviction * * * may prevent a subsequent charge for the same offense, and it notifies him of the nature and character of the crime charged against him, to the end that he may prepare his defense, and the court, when called upon, may be enabled, upon conviction, to pronounce a correct judgment, it is sufficient.

"The Virginia statute, sec. 4865, is even more liberal, for its only requirement is that the indictment or information inform the accused of the nature and cause of the accusation against him. If the accused thinks that the indictment found against him is not sufficient he may enter a demurrer. Or if it is not sufficiently clear and specific as to the facts he may ask for a bill of particulars, which will give him the facts more specifically. See Code sec. 6901 (Michie); Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652, and Wilkerson v. Commonwealth, 122 Va. 920, 95 S.E. 388."

Obviously, the indictment upon which the defendant was convicted described a crime punishable under the Virginia Code and informed him of the nature and character of the offense with which he was charged. The location of the place alleged to have been burglarized was described as the home of Carr and the personal property alleged to have been stolen was described as the goods and chattels of the owner of the house. Although the evidence at the trial is not included in the transcript of record, it is reasonable to infer that the defendant was well informed as to the identity of the stolen goods through the production of the goods in the court or a description of them in the evidence, so that he was well aware of the precise nature of the charge. In any event, if he had desired greater particularity, he could have gotten it by demanding a bill of particulars and if his demand was improperly refused, he could have raised the point by motion for a new trial or upon appeal. See Pine v. Commonwealth, 121 Va. 812, 815, 93 S.E. 652. The statutes of Virginia provide for the amendment of an indictment in order to eliminate technicalities so long as the nature of the offense is not changed (Virginia Code, §§ 19-150 and 19-151); and the established practice in criminal cases provides for the furnishing of a bill of particulars in the discretion of the court whenever it appears that the allegations of the indictment are not sufficiently specific to inform the defendant of the details of the charge. The statutes also provide that the judgment in any criminal case shall not be arrested or reversed upon any exception or objection made to the indictment after a verdict unless it be so defective as to be in violation of the State Constitution (Virginia Code, § 19-139).

The same rule as to the nature and extent of the relief that may be had in a proceeding for habeas corpus is laid down by the Supreme Court of the United States in Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311-312, 67 S.Ct. 313, 317, 91 L.Ed. 308, where it is said:

"It is elementary that habeas corpus may not be used as a writ of error. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. The function of habeas corpus is exhausted when it is ascertained that the agency under whose order the petitioner is being held had jurisdiction to act. If the writ is to issue, mere error in the proceeding which resulted in the detention is not sufficient. Tisi v. Tod, supra. Deprivation of petitioner of basic and fundamental procedural safeguards, an assertion of power to act beyond the authority granted the agency, and action without evidence to support its order, are familiar examples of the showing which is necessary. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bridges v. Wixon, 326 U.S. 135, 149, 65 S.Ct. 1443, 1450, 89 L.Ed. 2103. But it is not enough to show that the decision was wrong, Tisi v. Tod, supra, or that incompetent evidence was admitted and considered. United States ex rel. Vajtauer v.

...