Opinion
06-26-1852
COMMONWEALTH v. NUTTER.
Fisher, for the prisoner.
1. What a sufficient entry on the record of the finding an indictment for a misdemeanor by a grand jury.
2. What a good indictment for attempting to commit a felony.
At the April term 1851 of the Circuit court of Ritchie, the record states that the grand jury " returned into Court, and among other things, presented an indictment against Thomas Nutter for felonious assault and battery." " A true bill."
The indictment contained five counts:
The first charged that Thomas Nutter on the 22d day of February 1851 in the county aforesad with malice aforethought, in and upon one David Kuner then and there being, feloniously, unlawfully and wilfully did make an assault and with a certain knife which he the said Thomas Nutter in his hand then and there held, and had drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with said knife, with intent in so doing, wilfully and of his malice aforethought to kill and murder the said David Kuner, contrary to the form of the statute & c.
The second count charged an assault with a knife with intent feloniously, wilfully and unlawfully and of his malice aforethought to kill and murder the said Kuner.
The third count charged the assault with a club as in the first count; and the fourth count charged the assault with a club as in the second count.
The fifth count charged that the said Thomas Nutter with malice aforethought in and upon David Kuner then and there being, feloniously, wilfully, and unlawfully did make an assault, and with a certain knife which he the said Thomas Nutter in his left hand then and there had and held, being drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with said knife, with intent then and there feloniously and unlawfully to commit the crime of murder upon the body of the said David Kuner, had he not been prevented and arrested from so doing, contrary to the form of the statute & c.
The prisoner upon being arraigned moved the Court to quash the indictment; but the Court overruled the motion, with liberty to the prisoner to renew it at the next term of the Court. The prisoner thereupon pleaded " not guilty; " and the case was continued.
At the next term of the Court the prisoner moved for leave to withdraw his plea of " not guilty," which was granted. And thereupon he moved the Court to strike the cause from the docket, because the finding of the indictment was not recorded. The ground of this motion was that in the order book of the Court the four words, " presented an indictment against," had been erased. It appears from the statement of the clerk that after he had written the words he had erased them by drawing his pen repeatedly across each of the said words, and had then rubbed his finger over them causing a blot for their whole length; he intending to have interlined them, but the interlineation had never been made by him or any other person. The four words were however legible, and the erasing marks of the pen over them were plain, and a large black mark or blot extended over the words apparently made by drawing a finger over them, whilst the ink of the erasing marks, or the words, or perhaps both was undried. The prisoner further insisted that the law knew no such offence as a felonious assault and battery, and that the indictment produced was not such as was described in the order book.
The Court waived the decision of the question for the time; and thereupon the prisoner demurred generally to the indictment and to each count thereof; and the attorney for the Commonwealth joined in the demurrer. Wherefore as in the opinion of the Court some of the questions arising on the demurrer were new and difficult, and involved the true meaning and interpretation of § 10 of ch. 199 of the Code of Va. p. 750-51, the Court with the consent of the prisoner adjourned to this Court the following questions:
1st. What judgment ought the Court to give upon the prisoner's motion to strike the case from the docket in consequence of the non-recording of the finding of the indictment as alleged by the prisoner under the circumstances aforesaid?
2d. Do the first and fifth counts, or either of them, set forth such an attempt to murder as to make the attempt to murder set forth in either of them a felony?
3d. If either of them does set forth such an attempt to murder as to make the attempt a felony, are the matters therein contained set forth in such legal and orderly manner as that the demurrer to the first and fifth counts ought to be overruled?
4th. What judgment ought to be rendered on the demurrer to each count of the indictment, and on the demurrer to the whole indictment?
Fisher, for the prisoner.
FIELD, J. delivered the resolution of the Court.
The Court is of opinion and doth decide in relation to the first question adjourned, that the Court ought to overrule the motion to strike the case from the docket.
In relation to the fourth question adjourned, that the demurrer to each count and to the whole indictment ought to be overruled.
And in relation to the other two questions adjourned, the Court declines to express any opinion; as these questions are in the opinion of the Court prematurely adjourned.