Speers v. Commonwealth

• Decision Date: 21 January 1867
• Citation: 58 Va. 570
• Parties: SPEERS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

58 Va. 570

SPEERS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 21, 1867

1. An indictment which charges a breaking into a house with intent to steal, and the stealing therefrom, is an indictment for house-breaking, and not for larceny; and is good.

2. To such a count may be added a count for simple larceny of the same goods. And the jury may find the prisoner guilty on each count, and fix a several punishment for each offence.

This was an indictment in the Circuit court of Albemarle county found against Harrison Speers, a freedman. The indictment contains two counts: The first charged that the prisoner on & c., a certain meat-house, not adjoining to or occupied with the dwelling-house, of one Mrs. Nannie Garrett, there situate, in the night time, feloniously did break and enter with intent, & c., feloniously to steal, & c., and thirteen pieces of bacon of the value of thirty-one dollars and fifty cents, of the property of said Nannie Garrett, then and there found, then and there did feloniously steal, take and carry away. The second count charged a simple larceny of the same bacon.

On the trial the jury found the prisoner guilty on the first count and fixed the term of his imprisonment in the county jail at one month; and they found him guilty on the second count, and fixed the term of his imprisonment in the penitentiary at three years. The prisoner then moved the court to arrest the judgment; but the court overruled the motion, and rendered a judgment upon the verdict. And thereupon the prisoner applied to this court for a writ of error to the judgment; which was awarded.

Crump, for the prisoner.

The Attorney General, for the commonwealth.

RIVES J.

The indictment in this case contains two counts: The first charges the statutory offence of housebreaking, under the 12th and 13th sections of chap. 192 of the Code, alleging not only the intent to steal, but also the actual theft; the second is for the larceny alone. As to the goods, their value and ownership, the larceny is laid precisely alike in both counts. Moreover, the court certifies it as a part of the record of this case, " that the larceny of which the prisoner was convicted under the second count of the indictment against him, was the same larceny charged in the first count of the indictment." Under this state of the pleadings, the prisoner was tried and found " guilty in manner and form as charged in the first count of the indictment aforesaid, and the term of his imprisonment in the county jail ascertained to be one month; and also guilty as charged in the second count of the indictment, and the term of his imprisonment for that offence fixed at three years in the penitentiary." Thereupon a motion was made in arrest of judgment, on the ground that the record disclosed two convictions for one and the same offence; that a conviction on the first count should discharge the prisoner on the second, or otherwise he might be convicted and punished twice for the same offence. The overruling of this motion constitutes the only assignment of error in this case.

We are therefore, called to examine and ascertain the legal effect, character and consequences of the first count of this indictment. As to the second, there is no question; that is clearly and confessedly a count for larceny only. The first count, however, charges the statutory offence of house-breaking, with a two-fold averment of an intent to steal, and of the actual theft. The averment of the intent to steal is sufficient under the statute; so also, where the felony has actually been committed, it seems sufficient to allege the commission; as that is the strongest evidence of the intention. But the intent to commit a felony, and the actual commission of it, may both be alleged; and, in general, this is the better mode of statement. 1 Hale 560; 2 East P. C. c. 15, § 25, p. 514; Rex v. Furnival, Russ. & Ry. 445...