Dye v. Commonwealth
Supreme Court of Virginia
*John P. Dye was indicted in the Circuit court of Harrison county, at its June term for 1847, for that he “did then and there knowingly and wilfully without lawful authority, take and carry away two hogs of the value of five dollars, then and there belonging to Benjamin Stout,” &c.
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*John P. Dye was indicted in the Circuit court of Harrison county, at its June term for 1847, for that he “did then and there knowingly and wilfully without lawful authority, take and carry away two hogs of the value of five dollars, then and there belonging to Benjamin Stout,” &c. The defendant appeared and moved the Court to quash the indictment, for errors apparent on its face; the error being the omission of the words “but not feloniously ; but the Court overruled the motion. The defendant thereupon pleaded not guilty. The case came on for trial in October 1848, when the jury declaring…
1Opinion of the CourtThompson, J.
The motion to quash the indictment because of the omission of the words of the statute “but not feloniously” was properly overruled. They form no element or ingredient of, and constitute no part of the description or definition of the offence. Nor are they to be likened to the exceptions and provisos sometimes found in the body of a statute, which, according to the precedents, must be inserted in, or negatived by, the indictment. Whether inserted or omitted, the offence charged and the evidence to support it are the same, to wit, a trespass amounting to a misdemeanor, and not a felony. It is…
2Cited by4 opinions
- Dove v. CommonwealthSupreme Court of Virginia · 1886
- State Ex Rel. Cogar v. HaynesWest Virginia Supreme Court · 1971
- Wright v. CommonwealthSupreme Court of Virginia · 1882
- State Ex Rel. Cogar v. HaynesWest Virginia Supreme Court · 1971