Garnett & Cosby v. Commonwealth , 117 Va. 902 ( 1915 )

Whittle, J.,

delivered the opinion of the court.

• Tho indictment against the plaintiffs in error, Brooking Garnett and John Cosby, contained three counts. The first count charged the breaking and entering of the dwelling house in question in the night time with intent to steal; the second, the entering without breaking with similar intent; and the third, the larceny of certain money alleged to have been found in the dwelling house.

There was a demurrer to the indictment and to each count thereof, which the court overruled. Thereupon, the accused were jointly tried, and the jury found them not guilty as charged in the first and third counts, but guilty of the felony charged in the second count, and fixed their punishment at three and one-half years in the penitentiary.

1. The first assignment of error questions the court’s acr tion in overruling the demurrer to the second count of the indictment; the grounds of demurrer being, that standing alone (the parties having been acquitted on the first and third counts), the second count is defective in that it does not show the venue, or the swearing of the grand jury, or in what court of the Commonwealth the indictment was found. All these objections are removed when the count is read in connection with the caption, which applies to the indictment as a whole and to each count thereof. Wright’s Case, 82 Va. 188, 185; Robinson’s Case, 88 Va. 900, 14 S. E. 627.

2. The next assignment of error is to the admission by the court, over the objection of the defendants, of declarations in the nature of admissions alleged to have been made by Brooking Garnett in the absence of John Cosby after the common enterprise in which defendants were charged to have been engaged had been consummated.

The general rule in such case is that such declarations are only admissible against the declarant, and are not competent evidence against his former associate. Hunter’s Case, 7 Gratt. (48 Va.) 641, 56 Am. Dec. 121; Jones’ Case, 31 Gratt. (72 Va.) 836; Oliver’s Case, 77 Va. 590.

3. The court did not err in admitting the evidence of the justice of the peace before whom the parties were originally tried. State v. Duffy, 57 Conn. 525, 18 Atl. 791; 3 Wigmore on Ev., sec. 1909.

4. The court, over the objection o'f the accused, gave instruction 8, as follows:

“If the jury believe from the evidence that the accused entered the dwelling house of Easter Hill, in the night time, with intent to commit larceny, without breaking, then he is guilty of the felony charged in the second count of the indictment, when the Commonwealth has shown that an unlawful entry was made in a dwelling house in the night time, the presumption is that the entry was made for an unlawful purpose and the purpose may be inferred from the surrounding facts and circumstances, and then the burden is upon the accused to prove to the satisfaction of the jury that his entry was for a lawful purpose.”

The latter clause of this instruction does not state' th$ correct rule as laid down in Litton’s Case, 101 Va. 833, 849, 44 S. E. 923; and Potts’ Case, 113 Va. 732, 73 S. E. 470.

5. Instructions D, G, and J, which were refused, were substantially covered by instructions A, B ánd I which were given; therefore, the court’s refusal to give the former instructions is not reversible error. Litton’s Case, supra; Robinson’s Case, 104 Va. 888, 52 S. E. 690; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596.

6. As the judgment must be reversed on other grounds'; it is not necessary to notice the last assignment, that the evidence does not support the verdict.

The judgment must be reversed and the case remanded' for a new trial.

Reversed.