Commonwealth v. Smith

2 Va. 327

• Court: General Court of Virginia
• Decided: June 15, 1823
• Status: Published

Opinion

WHITE, J.,

stated the Case, and delivered the resolution of the Court. The Grand Jury impannelled in the Superior Court at its last Term, presented an Indictment charging the prisoner, James Smith, with having felo-niously broken, and entered the store-house of one Brightberry Brown, and with stealing and feloniously taking and carrying away, certáin goods, chattels, and monies-, therein found, of greater value than four dollars, against the form of the Statute. To this Indictment he pleaded not guilty, and the jury which was charged with his Case, found a verdict in the following words, to wit: “We the jury find the prisoner, James Smith, guilty of grand larceny, and ascertain the term of his imprisonment to be seven years in the Public Jail and Penitentiary-house.” At another day of the said Term, the prisoner prayed the Court not *to proceed to judgment upon the aforesaid verdict. 1. Because the verdict is varia-nt from-the issue, and does not find any offence charged in the Indictment. 2. Because the finding of the jury is variant from the Indictment. And 3. Because for the offence found by the jury, he could not be sentenced to a confinement in the Public Jail and Penitentiary, for a longer term than three years. Whereupon the Court adjourned to this Court the following questions: 1. Ought judgment to be arrested on the verdict aforesaid ? 2. If judgment ought not to be rendered on the verdict aforesaid, against the prisoner, is he to be discharged, or have a new trial on the same Indictment ?

This Court having maturely considered the Case, is of- opinion, and doth decide, that judgment on the said verdict ought not to be arrested, but that the said verdict being insufficient, and too uncertain to justify the rendition of any judgment thereon, it ought to be set aside, and a venire facias de novo awarded ; which is ordered to be certified to the said Superior Court.

Note (in edition of 1853). — The insufficiency and uncertainty of the verdict, consisted in this, that it ascertained the imprisonment of the prisoner to be for seven years, for which term he might have been punished if he had been found guilty of the Statutory offence of breaking open the store-house, and stealing, &c. but it did not convict him of that offence: on the other hand, it found him guilty of grand larceny, but affixed a punishment to it; which was not legal.