
    *Leftwich v. The Commonwealth.
    
    November Term, 1870,
    Richmond.
    I. Larceny — False Pretense — Form of Indictment. — The statute for punishing persons obtaining money or other property which may be the subject of larceny, by any false pretense, makes the offence larceny; Code, ch. 192,'s. 49, p. 796; and an indictment for the offense may be, either in the form of indictment 'for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny.
    s. Same — indictment—Must Show the Kind of Cur= rency. — in an indictment under this statute, for obtaining money upon a false pretense, it is not sufficient to describe it as “ninety dollars in United States currency;’’ but it should shew what kind of United States currency was obtained.
    3. Habeas Corpus — A Function of. — When a prisoner has been taken to the penitentiary, before the judgment against him is reversed by the Court of Appeals, that.court will bring him before them by habeas corpus, and discharge him.
    4. Escaped Prisoner — Action of Court of Appeals.— The Court of Appeals will not hear a case where the prisoner has escaped, and is going at large; . but will make an order to dismiss the appeal unless he Returns into custody. But having heard and reversed a case without having been informed of the escape of the prisoner, the court will not afterwards set it aside.
    This was an indictment in the County court of Montgomery county, against Bewis Beftwich, found at the November term, 1868. The indictment contains three counts. The first count charges that Beft-wich, designing and intending feloniously to defraud one Jeremiah K. Montague of his money, on the 6th day of May, 1868, in the said county, did designedly, falsely and feloniously, personate and represent himself to the said Montague to be one Gabriel May, and as such, he, the said Bewis Beft-wich, was then and there the owner of a negotiable note executed, &c., by William Mahone, *president, to Gabriel May, or his order, &c., for one hundred and twenty-eight dollars. Whereas, the said note was the property of the said Gabriel May, &c., and was of the value of ninety dollars, United States currency; and under such assumed name and character, and by means of such false and felonious pretence, he, the said Bewis Beftwich, did, &c., receive for said note, from the said Jeremiah K. Montague, the sum of ninety dollars in United States currency, of the value of ninety dollars, of the property of said Montague, &c., with intent to defraud him, &c.
    The second count sets out that Ueftwich pretended and represented that he was authorized to sell the note; and by means of such fraudulent pretence, he did feloniously and fraudulently receive from Montague, for the note, the sum of ninety dollars in United States currency, &c.
    The third count is like the first, with the addition — and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Ivewis Ueftwich then and there, in manner and form aforesaid, the said ninety dollars, United States currency, of the value of ninety dollars of the goods and chattels and property of the said Jeremiah K. Montague feloniously did steal, take and carry away, against the peace, &c.
    The prisoner, when brought into court, moved the court to quash the first and second counts in the indictment; which motion the court overruled. He then demurred to the indictment; and the court overruled the demurrer.
    The prisoner then pleaded not guilty; and upon his trial the jury found him guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly. On the trial the prisoner, by his counsel, filed four bills of exceptions to the rulings of the court; but the questions arising *upon these exceptions were not noticed in this court.
    The prisoner obtained a writ of error to the Circuit court of Montgomery county, where the judgment of the County court was affirmed; and he then brought the case to this court.
    Phlegar, for the prisoner.
    The ‘Attorney-General, for the Commonwealth.
    
      
       For monographic note on False Pretenses and Cheats, see end of case.
      * Same — Same—United States Currency. — In Dull v. Commonwealth, 25 Gratt. 974, the principal case was cited as holding, that, in an indictment for larceny, a description of the subject as “United ■ States currency” is not sufficient, and such an indictment is radically defective. The court then said, that, in consequence of the above decision the act, approved February 28, 1874, was passed by which it was enacted that “in a prosecution for the larceny of United States currency,” “it shall- he sufficient if the accused be proved guilty of the larceny of national bank notes or United States treasury notes;” and, therefore, an indictment for an offense committed since the passage of that act, charging the offense as larceny of the “United States currency,” does charge an indictable offense under that act.
      On the general subject, “Indictments,” see mono-graphic note.
      
    
    
      
       Indictment — Larceny— What flay Be Shown. — In Anable v. Commonwealth, 24 Gratt. 566, it was said; “The principle settled in Dowdy’s Case, 9 Gratt. 727, followed.in Leftwich’s 'Case, 20 Gratt. 716, and recently in Price’s Case, 21 Gratt. 846, have fixed the judicial interpretation of the statute (i. e., Code 1860, chap. 192, §49). That interpretation, accepted and acted upon by the profession since the year 1852, and the legislature, with full knowledge of this judicial interpretation, never having amended the statute, it would be mischievous to the last degree now to change it; and the rule stare decisis must now prevail. It must, therefore, be now held as the settled law of this State, that upon an indictment simply charging larceny, the commonwealth may now show either that the subject of the larceny was received with a knowledge that it was stolen, or that it was obtained by a false token or false pretence.”
      In the same case, Moncure, P., agreeing with the above, said, page 583: “It happened that I was a member of the legislature which framed the Criminal Code, and also the legislature which enacted the Code of 1849. It also happened that I prepared the opinion of this court in each of the cases of Dowdy, Leftwich, and Price, before referred to. It is not strange, therefore, that I should have a decided view of the question under consideration.” See also, Dull’s Case, 25 Gratt. 982. See Pitsnogle’s Case, 91 Va. 811, 22 S. E. Rep. 351; State v. Halida, 28 W. Va. 503, all citing the principal case as authority.
      See monographic note on “False Pretenses,” at end of case.
      Same — Same—Embezzlement.—For a collection of cases supporting the proposition that on an indictment for larceny, proof of embezzlement is sufficient to sustain the charge, see foot-note to Fay v. Com., 28 Gratt. 912.
      See generally, monographic note on “Larceny” appended to Johnson v. Com., 24 Gratt. 555.
      † Escaped Prisoner — Action of Court of Appeals. — See the principal case cited in Franklin v. Peers, 95 Va. 604, 29 S. E. Rep. 321; Allen v. State of Georgia, 17 Sup. Ct. Rep. 527; State v. Conners, 20 W. Va. 6, 9, 12. See also, Sherman’s Case, 14 Gratt. 677.
    
   MOISTCURE, P.,

delivered the opinion of the court.

The plaintiff in error was convicted and sentenced to three years’ imprisonment in the penitentiary, for the felony created by the Code, chapter 192, section 49, page 796, which declares that “If a free person obtain by any false pretence or token from any person, with intent to defraud, money or other property, which may be the subject of larceny, he shall be deemed guilty of the larceny thereof, ’ ’ &c. The indictment contained three counts, in each of which the offence was set out specially, and not in general terms, as in the case of a larceny at common law; except that to the third count there is a conclusion in these words: “And so the jurors aforesaid, upon their oath aforesaid, do say that the said Uewis Ueftwich, then and there, in manner and form aforesaid, the said ninety dollars, United States currency, of the value of ninety dollars, of the goods, chattels and property of the said Jeremiah K. Montague, feloniously did steal, take and carry away, against the peace and dignity of the Commonwealth of Virginia.” In each of the counts, the subject charged to have been obtained by false pretences is described in the same words, as “the sum of ninety dollars, in United States currency, of the value of ninety dollars, of the goods and chattels and property of the said Jeremiah K. Montague.” There was a motion to quash *the first and second counts, which was overruled; and there was a general demurrer to the whole indictment, which was also overruled. There was then a plea of not guilty, on which verdict and judgment were rendered.

Several errors are assigned in this case, but only two of them need be noticed. They are, in overruling the motion to quash the first and second countsand in overruling the demurrer to the whole indictment.

In regard to the motion to quash the first and second counts, it is contended that they "ought to have been quashed, because they are not in form as for larceny at common law, and do not allege the stealing, taking and carrying away of the subject of the larceny.

It would certainly have been competent for the pleader to have counted as for a larceny of the subject in the form of an indictment for larceny at common law ; and proof of the special facts set out in the act as constituting the offence, would have sustained the charge. Dowdy v. Commonwealth, 9 Gratt. 727, 734. But it is also competent for the pleader, instead of counting for a larceny of the subject in the form of an indictment for larceny at common law, to charge the specific facts which the act declares shall be deemed larceny. The legal conclusion deducible from these facts is drawn by the act itself, and need not, of necessity, be drawn in the indictment.

The Circuit court, therefore, did not err in overruling the motion to quash, on that ground. The motion was also placed upon another ground, which, however, need not be noticed, in the view we have taken of this case.

In regard to the demurrer to the indictment, it is contended that the demurrer ought to have been sustained, “because no particular kind of property is alleged to .have been stolen; the words, ‘United States “currency,’ being nomen gen-eralissimum, which is not a sufficient description. ’ ’

The statute on which the indictment is founded, declares that if a person obtain, by any false pretence, from any person, with intent to defraud, money or other property, which may be the subject of larceny, he shall be deemed guilty of the larceny thereof. We think that the “money or other property,” which a person may be charged under this statute with having obtained by false pretences, ought to be described in the indictment with the same particularity which would be required in an indictment for the larceny thereof. The indictment, as we have already seen, may either be for larceny generally, or for the specific acts which this statute says shall he deemed larceny; and in either case the same particularity of description of the subject is necessary. The same reason for such particularity exists in the one case as in the other.

Then, is the description of the subject in this case sufficient?

In all the counts of the indictment the subject alleged to have been obtained by the false pretences set out therein, is described as “the sum of ninety dollars in United States currenc3r, of the value of ninety dollars of the goods, chattels and property of the said Jeremiah K. Montague.” “Ninety dollars in United States currency,” is the subject of the larceny in each of the counts. Is that a sufficient description of the subject?

We think not. “United States currency” may be gold, or silver, or treasury notes, or bank notes. 'Proof that any of these subjects were obtained by the false pretence alleged, would be perfectly consistent with the indictment; which, therefore, is too vague. It ought to show what kind of United States currency was obtained. An indictment in the common law *form, for a larceny of “United States currency,” eo nomine, would surely not be sufficient. And for the same reason an indictment for obtaining “United States currency” by false and fraudulent pretences, which is deemed in law, larceny, is not sufficient. An indictment for obtaining ‘ ‘bank notes’ ’ by false pretences would be good', as in an indictment for stealing ‘ ‘bank notes ’ because the statute makes the stealing of “any bank note” larceny. Code, p. 789, ch. 192, \ IS. But there is no law making the stealing of'“United States currency,” eo nomine, larceny.

In The State v. Longbottoms, 11 Humph. R. 39, the indictment charges a larceny of “ten dollars good and lawful money of the State of Tennessee.” This was held to be an insufficient description of the thing stolen. The court said: “Where personal chattels are the subject of an offence, as in larceny they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated.” 2 Hale 182, 183; Arch. Cr. Pl. 49 (Londonedition). Money should be described “as so many 'pieces of the current gold or silver coin of the realm. And the species of coin must be stated by its appropriate name. ” R. & R. 482; Arch. 50.

In the People v. Ball, 14 Calif. R. 101, it was held that an indictment for larceny, describing the subject stolen as “three thousand dollars, lawful money of the United States,” is insufficient. The particular denomination or species of coin must be set forth. Citing Arch. Cr. Pl. 61; Whart. Cr. Law 132; and the case in 11 Humph., before referred to. See also 2 Russ, on Crimes, edi. of 1857, pp. 107-113.

We think the cases cited are sustained by the authorities relied on for that purpose and' other authorities; from which it follows that the demurrer to the indictment in this case ought to have been sustained.

'“Without considering any other question arising in this case, we are, therefore, of opinion, that the judgment of the Circuit court affirming that of the County court, and also the judgment of the County court, is errofieous, and ought to be reversed and annulled, and judgment entered in favor of the plaintiff in error, on the demurrer to the indictment. But, as he is now confined in the penitentiary under the said judgment of the County court, affirmed by the said judgment of the Circuit court, it is necessarjr that he be brought before this court by habeas corpus, to be disposed of as may be proper; which is ordered accordingly.

The judgment was as follows :

The court is of opinion, for reasons stated in writing and filed with the record, that the indictment is radically defective, and the demurrer thereto ought to have been sustained, instead of being overruled; and that on that ground both of the said judgments of the Circuit court and of the County court are erroneous. Therefore it is considered that the said judgments be reversed and annulled. And this court, proceeding to give such judgment as the said County court ought to have given, it is further considered by the court that the said demurrer be sustained, and that the • said Lewis • Leftwich go quit of the offence charged against him by the said indictment; which is ordered to be certified to the said Circuit court.

But it appearing that the said Lewis Left-wich is now in confinement in the penitentiary, under the said judgment of the County court, affirmed by the said judgment of the Circuit court, a writ of habeas corpus is awarded, directed to the superintendent of the penitentiary, commanding him to have the body of the said Lewis Leftwich before this court to-morrow morning at eleven o’clock, together with the day and cause of his capture and detention, in order that the court *may make such order concerning him as may be proper.

Upon the return of the superintendent of the penitentiary, it appeared that the prisoner had been hired to a contractor on the Covington and Ohio Railroad, and had escaped ; when the court made the following order:

This day George R. Strother, superintendent of the penitentiary, appeared in court and made his return to the writ of habeas corpus which was awarded in this case on yesterday, from which return it appears that the said Lewis Leftwich is not now in his custody, or in the penitentiary, and has not been since he has been superintendent thereof; but that the said Lewis Leftwich was hired out by a former superintendent of the penitentiary to a contractor on a railroad, from which he made his escape on the 22d of June, 1869, and is now going at large. And although the court, if informed of these facts before hearing and deciding this case, would have pursued the same course which was pursued by the court in Shearman v. The Commonwealth, 14 Gratt. 677, and in Haze v. The Commonwealth, in 1867 (not reported) ; that is, would not have decided or heard the case while the plaintiff in error was going- at large, but would have made an order that the said writ of error should be dismissed on a certain day, unless it should be made to appear to this court on or before that day, that the said plaintiff in error was in custody of the proper officer of the law; yet, as the case was heard and decided without such information, the court deems it proper not to set aside the judgment entered in this case on yesterday, but to permit the same to stand and remain in full force, and to dismiss the said writ of habeas corpus; which is ordered accordingly.  