81 Va. 159 | Va. | 1885
delivered the opinion of the court.
Upon his arraignment the prisoner moved the court to quash the proceedings, and objected to the arraignment, but assigned no grounds for his motion; which was overruled, and the prisoner excepted. He then moved to quash the indictment, and demurred to same; which motion and demurrer were also overruled, and the prisoner again excepted.
Upon the trial the jury rendered their verdict as follows—to wit: “ We, the jury, find the prisoner, Jesse Butler, guilty as charged in the within indictment, and fix his punishment at confinement in the penitentiary for two years.” Whereupon the prisoner moved the court for a new trial, and in arrest of judgment, which motions the court likewise overruled, and gave judgment upon the verdict as found by the jury.
The first assignment of error is, that the court below should have sustained the prisoner’s motion to quash the indictment and proceedings, because the prisoner had not been carried before a justice of the peace of the said city for an examination of the alleged offence, and therefore could not be tried therefor.
After a careful examination of the authorities bearing upon
The second assignment of error is that the demurrer to the indictment should have been sustained, “ because there is no allegation therein as to the ownership of the store-house which was broken and entered.” This assignment is bad. The indictment is exactly the same in form as that in Speer’s Case, 17 Gratt. 570, except only that in that case there is, after the word “dwelling-house,” a comma, whilst in this case the comma is wanting. The language is, “a’certain store-house, not adjoining or occupied with the dwelling-house of one David A. Studds.” It is manifest that the words “of one David A. Studds,” were meant to express, and that they do express, that both store-house and dwelling-house were the property of David A. Studds.
As another assignment of error it is contended that the indictment charges two distinct offences; first, breaking and entering with intent to commit larceny; and secondly, larceny; and that the verdict is vicious in that it is general, and does not show of .what offence the prisoner was convicted. The position is untenable. In Speer’s Case, supra, it was expressly decided that an indictment which charges a breaking into a house with intent to steal, and the stealing therefrom, is an indictment for house-breaking only and not for larceny. The verdict found the. prisoner guilty of the offence charged in the
But the- plaintiff in error contends that there is no evidence in the record to show that the offence was committed within the jurisdiction of the corporation court of the city of Alexandria. And this contention appears to be well founded. A careful examination of the evidence as certified satisfies us that it not only does not prove that the offence was committed within the corporate limits, or within one mile thereof, but does not furnish any foundation for a violent presumption to that effect. That an indictment cannot be sustained without proof that the offence was committed within the county or corporate limits where the venue is laid is well settled, and was decided by this court in the recent case of Richardson v. The Commonwealth, 80 Va. 124.
It is clear then that the court below erred in refusing to set aside the verdict and to award a new trial; and for this error alone we are of opinion to reverse the judgment complained of and remand the case to the corporation court of the city of Alexandria for a new trial, to be had therein in conformity with the views herein expressed.
Judgment reversed.