Pryor v. Commonwealth

Riely, J.,

delivered the opinion of the court.

While we are of opinion that, in indicting the defendant for the offense for which he was prosecuted, the usual and better form was adopted in framing the first count of the indictment, still the second count conforms to the requirements of the statute, and the court did not err in overruling the demurrer. Rand v. Com., 9 Grat. 738 ; Rider v. Com., 16 Grat. 499 ; Thomas v. Com., 22 Grat. 912; Stroup v. Com., 1 Rob. (Va.) 754.

The first count is unquestionably good, and constitutes an indictment for a felony (Rider’s Case, supra), and the court, therefore, had jurisdiction to try the accused upon it. If the offense were defectively charged in the second count on account of its form, and the count as framed only charged a misdemeanor, as contended by counsel, nevertheless the defendant was in nowise prejudiced by the action of the court in overruling his demurrer. Each count is precisely the same in substance. The objection to the second count was wholly because of its form. It contained no additional or different allegation from the first count, and under the first count every particle of testimony could be introduced whose introduction would be authorized by the second count, if valid as an indictment for a felony.

Nor did the court err in admitting the record offered to prove the previous conviction of the defendant for the larceny of the goods of H. D. Walters. The record shows that the defendant was convicted of the offense, and sentenced therefor, by a justice of Montgomery county, to confinement, in jail for three months. An appeal was taken by him to the court of the county, which, as appears from the record, by consent set aside the judgment of the justice, and by further consent ordered that the defendant be confined in jail for two months from the date of his committal by the justice. The only objection made to the introduction of the record was that the order of the court does not expressly show the specific offense for which it ordered that he should be so confined in jail.

The record shows that the defendant had appealed to the court from the judgment of the justice convicting him of the petit larceny aforesaid. The appeal brought before the court the judgment of the justice for review, and that particular-offense, and no other, for its consideration. This constituted the only matter before the court affecting the defendant and invoking its judgment in respect to him. The entire action of the court is embraced in the same order or judgment, and it must be construed with reference to and in the light of the matter before it.

The record shows expressly that the order was entered in the case of the appeal of the defendant, and that in the same breath the judgment of the justice by consent was set aside, and by further consent it was adjudged that he be confined in jail for two months, instead of three, as ordered by the justice. It proves conclusively the conviction of the accused for the larceny of the goods of H. D. Walters, as alleged in the indictment. No other interpretation of the judgment of the court is reasonable or admissible.

The admission of the record being proper, the evidence before the jury fully sustained the verdict, and the motion for a new trial was rightly denied.

The foregoing being the only errors assigned by the petitioner, the judgment of the circuit court is affirmed.