Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1885-12-04

the offender shall be confined in the peni-
Tertiary not less than five nor more than
ten years" Section 8 provides III .
person maliciously burn any building, the
burning whereof is not punishable und,r
any other section Of this chapter, he shall,
if the building, with property therein be
OF the value of one hundred dollars CT
more, be confined in the penitentlary not
less than three nor more than ten years"
The indictment in this case contains TIVE
counts, the first under the first section just
cited, aud tie second count drawn under
the 9th section cited above, and the clerk,
under the direction of the court, so charg-
ed the jury at the trial.
The first count is admitted to be unex-
ceptionable, the motion to quash aud the
demurrer were addressed to the said second
count, which is as follows:
" And the jurors aforesaid, on the oaths
aforesaid, do further present that the said
John c. Richards, Benjamin F. Fry and
Addison Buchanan Fauyer on certain
day, to-wit: on the 18th day Of October
in the year 1881, In the night time Of that
day, in the county aforesaid, a certain 9th
or other building then and there Of great
value, to-wit of the value Of one thou
oahh AVlldt1f Dtluk Nho piopphbJ VI N-N'
This second count is defective for UNI
certainty, and charges no offence under
our statute, The punishment prescribed
by that section is provided for the burning
of other buildings not mentioned or pro.
yded for in any Of the other sections OF
the statute and the said section does not
apply TO any building enumerated In any
OF the other sections, and again if il did,
the accused are entitled 10 be informed
what certain other building they are &C
cused of burning in tie night time Of the
value of one thousand dollars, this is not
denied, but it is insisted ON the part OF
the Commonwealth that the motion TO
quash and the demurrer came too late
having been made after the plea Of not
guilty, ..t....
A motion to quash the indictment ought
to be made at an early stage Of the cause.
There are cases and dicta which seem TO
20 fully TO the point that this motion
cannot be made after Issue joined on the
plea of not guilty, or perhaps after the
plea itself is entered | Starkie Grim. Pl.,
ID Edition 299; The State vs.. Birmingham
- Maine 104; Nichols vs.. The State 2
Southland 500. And it is not a motion
which viii ordinary be entertained while
the case is on trial In the case Of Nichols
vs.. The State ID Southland supra, II was
laid down that TO make way for q motion
to quash, the court will always permit the
plea of not guilty TO be withdrawn.
The true rule appears TO be, says Mr..
Bishop, that there is no need for this plea
to be withdrawn, it being In the discre-
ton Of the court to hear this motion while
the plea remains on the record. In the
case of the Commonwealth vs.. Chapman
IL Cush. 400. .t
After the defendant had pleaded not
guilty, and when the case was about to be
tried, but before the jury were impannell-
ed, the court refused TO allow him to with
draw his plea Of not guilty for the pur-
pose of demurring to the indictment, yet
consented to hear the objection on 4 mo-
ton to quasb, which was done without
any withdrawal of the plea. And various
other cases confirm the general PROPOSE
ton, that the existence on the record Of
the defendants plea Of not guilty Is no abb
sOlute bar to the defendants motion TO
| quash, and it seems that the court may in
It's discretion quash an indictment at any
time before the jury are charged with the
case.
The doctrine to be drawn from the cases
and from the reason OF the law combined,
appears to be the motion to quash not be-
ing one Of right, but Of privilege granted
by the court TO the defendant will not be
received when presented at an unreasona-
bio time. In this case the court received,
and considered the motion TO quash and
the demurrer after the plea of not guilty
and overruled both, before the jury was
selected and sworn.
The second count was plainly defective,
there must be certainly in every indict.
ment touching the thing wherein OF Of
which the offence is committed.
This certainly consists in the special
description of the persons, places and
things mentioned in the indictment, with
| their respective names, situation, extent,
nature, quantity, number, value and own
ership Stack. Grim. Pl., 2 Ed. lS2 2
Hale, p. c. 152.
In Newbray's case tried In the general
court and reported in 9th Leigh, Gholson,
| Judge, said The motion of the prisoner,
| which the court overruled was O motion 10
quash the whole indictment and each
count thereof. Constituting the motion in
such manner as 10 give to all its parts
their full aud fair meaning, we deem 1t not
az a motion to quash generally but that 1t
embraced a motion to quash each OF the
counts Of the said indictment singly and
separately, and 20 viewingit this court is
Of opinion that the Circuit Court erred In
wholly oyerruling it.
A general verdict Of guilty declares the
accused guilty of each and every count 10
the Indictment
The jury find the prisoner guilty on all
| the counts of the indictment and declare
generally that he shall suffer imprison-
ment for so many years--who shall say
how they apportioned the punishment, &c.
In this case there is a general verdict Of
! guilty, the punishment fixed by the yer.
| dict is not such as could be ascertaned
under that finding, in the LIST section The
| punishment prescribed by the frat section
is death, unless the jury find that no per-
son was in the dwelling house when the
burning was done. The finding OF the
jury was there guilty under the second
count and was an acquittal upon the first
count. In the case of Page vs.. Common
wealth Goth Graft, Judge Moncure says
| The Commonwealth VS.. Bennett2 Va. case
235. Yick's case Leigh 627, and Pages
case Leigh 653 are express authorities
| that when verdict finds prisoner guilty
| upon some Of the counts of the indictment,
saying nothing Of others, judgment Of ac-
| quttal should be entered upon these
counts of which the verdict takes no no
tce and this disposes of all questions in
regard to first and second counts.
The judgment was reversed, judgment
of acquttal entered here on the first and
second counts, the verdict against the
| prisoner on the third count set aside and
the cause remanded for new trial to be
| had on that count under the fifth section.
In Pages case Leigh, the general
court reversed the circuit court because
| its Judgment did not acquit tho prisoner
of the charges contained in counts not
noticed in the verdict, and also for refus-
| ing to quash the counts on which the con.
viction was had.
In Stuart's case, 2sth Graft: This sub
ject was again under examination in this
| court with the same result. See the opin.
! ion of Staples, J. and the cases cited.
If the finding Of the jury could be cons
! fined to the first count, then the verdict
prescribing punishment contrary to that
| provided by the statute would be set aside
| and the case remanded for o new trial, as
| IN Jones' case 20 Graft. s57 Another
| ground of exception and assignment Of
error here is, upon the refusal Of the coun-
ty court to quash the yenre Of sixteen
persons selected by lot as stated supra.
Tho question arising upon this excep-
| ton can no longer be considered as an open
auestion in this court, but is settled by
| the decision here of the case OF Hall Vs.
| The Commonwealth, where in well con-
IL. =. -