Barker v. Commonwealth , 2 Va. 122 ( 1817 )

This was an application for a Writ of EJrror to a judgment of the Superior Court of Henry. The petitioner was indicted under the Statute ^(a) for stealing bank notes. He was convicted, and moved in arrest of judgment: 1. Because the offence was not charged to have been committed feloniously. 2. Because the bank notes stolen are not charged to have been the property of any one. The Superior Court over-ruled the motion, and rendered judgment on the verdict, to reverse which, this Writ was applied for.

The Writ was awarded at the last June Term, returnable to this Court, with an endorsement on it that it was to operate as a Supersedeas, and with 'further directions, that if the Writ should be served on the Officer before he should reach the Penitentiary with the convict, that he should be re-conveyed to the Jail of Henry county, there to remain till the further order of this Court. It so happened, however, that the convict was lodged in the Penitentiary before the Writ was served on the Sheriff. At this Term, a majority of the Court having decided that the judgment should be reversed, a Ha-beas Corpus was directed to the Superintendent of that Institution, by virtue of which, the prisoner was-brought before the Court; and Judge White pronounced the following opinion and judgment:

After verdict, the plaintiff in error moved to arrest the judgment, and assigned for cause: 1. That the taking and ^carrying away of the notes, stated to have been felonious. is not 2. That the notes are not stated to be the property of any person. The Superior Court over-ruled the motion in arrest, and entered a judgment on the verdict ; to which judgment, the plaintiff in error sued out from this Court his Writ of Error.

In support of the judgment on the first point, the Attorney General said, that the stealing bank notes was not felony at the Common Law ; that the Statute does not declare in terms that it shall be felony, ^(b) but merely declares that any person guilty thereof shall be punished by a certain imprisonment in the Jail and Penitentiary-house ; that it cannot be made a felony by construction, because felony is a Common Law term, and forfeiture of goods and chattels at the least, is essential in that offence ; nay, it is the very ingredient from which the term arises.

It is readily admitted, that the term felony, is derived from the source from which the Attorney General deduces it: and that forfeiture of lands or goods, or both, is, by the Common Law, essential to the offence so termed ; insomuch that if a new crime, either in England or in Virginia, before the year 1789, was created by Statute, and declared thereby to be a felony, forfeiture would immediately attach thereto: and, moreover, the punishment would also attach thereto, not because the word felony, in its original and “ rude idea and definition, ” (to use Judge Blackstone’s own words, vol. 4, p. 97,) had any reference to capital punishments, but because all felonies, with a few exceptions only, (which exceptions serve to prove the rule,) were by the Common Law so punished. Many Statutes creating offences, theretofore unknown, simply declare that the offences so created, shall be felony, or that the offenders against those Statutes shall suffer as felons, without saying, what in particular shall be their punishment: Eor instance, the Act “against embezzling Records, ” 1 Rev. Code of 1792, p. 45 ; the Act “ to prevent malicious shooting, ” Ibid, 178; the Act “ concerning stealing tobacco on the highway, ” Ibid, 280 ; and many others. Yet no Court, before or since the Penitentiary Law went into operation, ever doubted what judgment it ought to render against ''''persons convicted of those offences. And why ? Because, from the long and general application of capital punishment to those offences, (except as before excepted,) the crime and the punishment had, in contemplation of Law, become so blended, that the designation of one virtually included the other. Or, to use Blackstone’s language, Ibid, p. 98, “ the idea of felony is indeed so generally connected with capital punishment, that we find it hard to separate them: and to this usage the interpretations of the Law now conform ; and if, therefore, a Statute makes any new offence felony, the Law implies, that it shall be punished with death, by hanging, as well as with forfeiture. ” Thus the word felony originally signified forfeiture, but by long use, it came to signify those crimes that were punished by forfeiture. (Ibid, p. 97.) And by the like long use in the construction of the Statutory Laws, it acquired a new attribute. In all Statutes it denoted an offence to be punished with forfeiture and death. So, that in all Statutory offences, the word felony included ex vi termini the punishment of death as well as forfeiture. With this attribute it remained clothed in Virginia, as well as in England, till the year 1789. In that year it was enacted by the Legislature, that attainder of any treason, murder or felony, should in no case thereafter work any forfeiture of property to the Commonwealth : thus disrobing the technical word felony of one of its attributes, of its original and oldest attribute, but leaving it the other, and retaining it in the Code of Laws as descriptive of a certain class of offences. Eor, the Legislature manifestly understood, that notwithstanding forfeiture was done away, convictions of felony were thereafter to take place. I ask, then, to what class of offences did the Legislature intend should be thereafter designated by the term felony ? Clearly all those which had been therefore felonious at the Common Law, and all those Statutory crimes to which capital punishment was, or should be annexed, that being the only attribute by which a Statutory felony could thereafter be distinguished from any other offence. That the legislature did so intend, and so has uniformly understood the Law, is manifest from the several Acts before alluded to, every one of which has been enacted since the year 1789; and, indeed, from the whole course of Legislation on the subject of capital crimes, and those now punished in the Penitentiary, in lieu of capital punishment. I shall give only a few more instances :

*In the year 1792, the General Assembly re-enacted a Law, declaring that “any person who shall hereafter be guilty of stealing, or selling, any free person as a slave, knowing the person so sold to be free, and shall be thereof lawfully convicted, the person so convicted, shall suffer death without benefit of clergy.” Butitis not expressly declared to what class of offences this crime, thus capitally punished, without benefit of ■clergy, shall appertain. But has any body, therefore, supposed it was a mere trespass ? .Has any body doubted but that being capitally punished, in the highest degree too, it was a felony ? If such a doubt has ever existed, it has never reached my ear : on the contrary, I do know that one person at least has for that offence been indicted, convicted, and punished as a felon ;-'and that among all the efforts made to save him, this was not thought of. Does any body suppose that the Legislature did not, at the time it affixed this high punishment to this great offence, believe that it was creating a felony ? I believe there can be no doubt how it understood the thing.

I shall give but one instance more of the Legislative understanding of this question. For the very few instances in which it has thought proper to punish by confinement in the Penitentiary-house, crimes not sufficiently heinous, in the estimation, to be classed with felony, it has been careful to declare by express words, that such offences shall be misdemeanors. Why has it done this, but from a conviction that the annexation to those offences, of the punishment of felony, would have made them felonies, if the contrary had not been expressly declared ?

I do not deem it necessary to enter into any reasoning here to shew that the same words which would, before the Penitentiary Law went into operation, have created a felony, will have the same effect since. That Law was not intended to change the nature of offences, or to alter the fixed and known meaning of technical terms, but to mitigate and equalize the punishment of crimes.

This has not only been the Legislative meaning and understanding on this subject, but such has been very generally, at least, the understanding of legal men, and of our Courts of Justice, from the year 1789 to this day. Judge Tucker, (Note I to4Bl. Com. 95,) says, “ Although forfeiture, as well of lapds as goods, is abolished in Virginia, yet this will not alter the nature of felony, but all offences which induced a forfeiture at the Common Law, or which *have been declared capital by Statute, still remain felonies. ”

In M’Caul’s Case, which was a prosecution for an offence against this very Same Statute, the Indictment charged the offence to have been committed feloniously; and during all the investigations and discussions which that Case gave rise to, this was never thought of as a defect.

This Statute has been nearly twelve years in operation, and very many other prosecutions for this same offence, have taken place under it, in various parts of the State, in all of which, so far as I know, or have been able to inform myself, the Indictments were in the same form. The same may be said of prosecutions under the 2d and 3d sections of the Act of 1803, against malicious stabbing, shooting, &c. (2 Rev. Code of 1808, ch.. — .) It seems, therefore, to be too late, even if there was some ground for doubt, to unsettle this question, and thereby set aside a practical construction of these Laws of so long standing, and disturb all the Cases which have been decided under it. A majority of the Court are, upon the whole, of opinion, that there is error in not alleging that the taking of the bank notes in the Indictment mentioned, was done feloniously.

Upon the 2d point, a majority of the Court is of opinion, that the Statute of Jeofails was not intended to intróduce a carelessness, or laxity in pleading, but merely to cure those defects which the over-nicety of the Courts had introduced into the Common Law, and which did not put the rights of the Commonwealth or the accused into jeopardy. That the laying in an Indictment for larceny, to whom the thing stolen did belong, is not of that description, but is matter of substance, and may be very important to the accused, both in making his defence, and upon a plea of auterfoits acquit, or convict, and, therefore, that there is error in that respect also.

Judgment of the Court. “ It seems to the Court here, that there is error in the said judgment in this, that it ought to have been expressly alleged in the said Indictment, that the stealing of the bank notes therein mentioned, was done feloniously : and in this, that the said bank notes are. not alleged, in and by the said Indictment, to be the bank notes of, or to belong to, any person, or persons, or to a person or persons to the jurors unknown. Wherefore it is considered by the Court, that the said judgment *be reversed and annulled, and this Court proceeding to give such judgment as the said Superior Court ought to have rendered, it is further considered by the Court, that the said judgment be arrested, and that the said Joseph Barker go quit of the offence charged against him in the said Indictment.” Proclamation being then made, the Attorney General prayed that he might be committed to the Jail of Henrico county, to be from thence conveyed by the Sheriff of Henrico to the Jail of the said county of Henry, to answer a good and sufficient Indictment to be exhibited against him in the Superior Court of Law of the said county of Henry, for the felonious stealing, taking, and carrying away, the bank notes in the aforesaid first Indictment mentioned. Which is ordered accordingly.

(a) Acts of 1806, ch. 10, § 3 ; see 2 Rev. Code of 1808, ch. 91, p. 118.

(b) But by tbe new revisal, the stealing bank notes, &c. is declared felony. See 1 Rev. Code of 1819, ch. 154, § 8.