Opinion
11-27-1872
THOMAS v. COMMONWEALTH.
The Attorney General, for the Commonwealth.
Absent, CHRISTIAN and BOULDIN, J's.
BOULDIN, J. had been counsel.
T is indicted in the Corporation court of Lynchburg, for petit larceny; and the indictment states he had been previously convicted and sentenced for a like offence, before C, the mayor of the city. On the trial the warrant of the mayor for the arrest of T and the endorsement thereon by the mayor of the conviction and sentence to imprisonment of T is introduced in evidence, and there is proof of its genuineness and that T is the same person. There is a verdict of guilty as charged in the indictment, and T is sentenced to imprisonment in the penitentiary. HELD:
1. The mayor, by § 1 of the act of March 30, 1871, has concurrent jurisdiction with the Corporation court, of all petit larcenies; and his sentence of T was legal.
2. The warrant and endorsement with proof of the genuineness of the parper and the identity of the party, are proper evidence in the cause.
3. That the plea of " not guilty" does not put in issue the allegation of the previous conviction and sentence of T, and the verdict of " guilty," simply, does not respond to that allegation. It must be admitted by the prisoner or found by the jury, to warrant the sentence of confinement in the penitentiary.
In August 1872, the grand jury of the Corporation court of Lynchburg indicted Mike Thomas for stealing a pair of pants of the value of $2.25. And they further stated in the indictment that Mike Thomas was on the 27th of January 1872, tried and convicted for a like offence in the Mayor's court for the city of Lynchburg, and in said court was sentenced to four months confinement in the city jail; setting out the offence.
On the trial the jury rendered a verdict as follows: " We the jury find the prisoner guilty as charged in the within indictment; " and the court sentenced the prisoner to be confined in the penitentiary for one year. He thereupon applied to a judge of this court for a writ of error; which was allowed.
In the progress of the trial the prisoner excepted to an opinion of the court, admitting in evidence the warrant issued by J. M. Cobbs, mayor of the city of Lynchburg, directing one of the policeman of the city to bring before the said mayor, or some other justice, Mike Thomas, to answer a charge of stealing certain goods named in the warrant, of the value of $5.50; and the endorsement thereon, which was as follows: " The within charge against Mike Thomas is sustained, and the defendant sentenced to city jail for four months. Given under my hand this 26th January 1872. J. M. Cobbs, mayor."
After the verdict was rendered the prisoner moved the court for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, and he excepted. And the court certified that the only evidence before the jury to sustain the charge that the prisoner had been previously convicted and sentenced for petit larceny, was the warrant and endorsement before mentioned, and proof that the prisoner was the person named in the warrant, and that he was convicted and sentenced by said J. M. Cobbs, mayor, for said offence.
There was no counsel for the appellant.
The Attorney General, for the Commonwealth.
OPINION
ANDERSON, J.
This is an indictment for petit larceny, with an allegation that the accused, before the committing the offence charged, had been convicted and sentenced in the mayor's court of the city of Lynchburg for a like offence.
The court is of opinion that the mayor of the city of Lynchburg, by virtue of the 6th section of chapter 48 of the Code of 1849, being a justice of the peace, was invested by the 1st section of " An act to extend the jurisdiction of police justices and justices of the peace in certain cases," approved March 30, 1871, with concurrent jurisdiction of all petit larcenies with the county and corporation courts. And consequently, that he had jurisdiction to try and convict and sentence the plaintiff in error of the petit larceny, of which it is alleged in the indictment he had been convicted and sentenced by the said Mayor's court, before the committing the petit larceny which is charged in the indictment in this case, and that such sentence brings him within the penalty of the act.
The court is further of opinion that the paper mentioned in the first bill of exceptions, purporting to be the warrant of the said mayor for the apprehension of Mike Thomas on a charge of petit larceny, dated 26th of January 1872, with the endorsement thereon in these words: " The within charge against Mike Thomas is sustained and defendant sentenced to city jail for the term of four months. (Signed) J. M. Cobbs, mayor," was proper to be given in evidence to the jury, with other evidence, to prove the identity of the accused and the genuineness of the paper, which it appears by the second bill of exceptions was given to the jury.
And the court is further of opinion that if the prisoner had admitted, or if it had been found by the jury, that he had been sentenced by the said mayor as aforesaid, there would have been no error in the judgment of the Corporation court for the city of Lynchburg sentencing the prisoner, the plaintiff in error, to imprisonment in the public jail and penitentiary house of the Commonwealth for the period of one year, under section 27, chapter 200 of the Code of 1860.
But the record shows that such admission was not made by the prisoner, nor the fact found by the jury, unless it be by the general finding of guilty, upon the plea of not guilty. The verdict is responsive to the issue, which is, guilty or not guilty of the offence charged in the indictment. Not whether he is guilty or not guilty of a like offence, of which it is alleged in the indictment he had been before convicted and sentenced. The plea of not guilty did not put in issue his guilt or innocence of that offence. It only puts in issue his guilt or innocence of the charge with which he was then to be tried. Nor does the plea of not guilty traverse the allegation in the indictment, that he had been previously convicted and sentenced for a like offence. That was a matter outside of the issue, and should have been specially found. The statute does not require an issue to be made upon it in the pleadings. It requires that it shall be alleged in the indictment. And not only that, but " admitted or by the jury found," to warrant a sentence of confinement in the penitentiary for a petit larceny. The court is, therefore, of opinion that the verdict is fatally defective in not responding to this requirement of the statute. It is, therefore, considered, that the judgment be reversed and annulled, the verdict set aside, and that the cause be remanded to the Corporation court for the city of Lynchburg for further proceedings to be had therein.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record:
1st. That the mayor of the city of Lynchburg, by the 1st section of the " Act to extend the jurisdiction of police justices and justices of the peace," approved March 30, 1871, was invested with concurrent jurisdiction with the Corporation court of all petit larcenies, and had jurisdiction to pronounce the sentence alleged in the indictment to have been before pronounced against the accused for a petit larceny; and that such sentence would bring him within the penalty of the act.
2nd. That the paper mentioned within the first bill of exceptions, purporting to be the warrant of the said mayor for the apprehension of Mike Thomas on a charge of petit larceny, with the indorsement thereon, was proper to be given in evidence to the jury, with other evidence to prove the identity of the accused and the genuineness of the paper; such as appears from the second bill of exceptions was given to the jury.
3d. That the plea of not guilty does not put in issue the allegation in the indictment that he had been previously convicted and sentenced for a like offence. The statute does not require that issue shall be made in the pleadings upon that allegation. It is a matter outside of the issue, and must " be admitted or by the jury found," to warrant a sentence of confinement in the penitentiary for a petit larceny. And not having been admitted or found by the jury in this case, the verdict is not responsive to a material requirement of the statute. It is, therefore, considered by the court that the judgment be reversed and annulled, the verdict set aside, and a new trial awarded. And the cause is remanded to the Corporation court of the city of Lynchburg for further proceedings to be had therein in accordance with this order.
JUDGMENT REVERSED.