Bailey v. Commonwealth

Citations

• 78 Va. 19
• 1883 Va. LEXIS 4

Syllabus

<p>1. Criminal Jurisdiction and Proceedings—Indictment—Statutory of-fence.—In describing an offence under a statute, the indictment must follow the statute, and any material variance will be fatal.</p> <p>2. Construction of Statutes—Obstructing roads, &c.—Averment of scienter.—In Criminal Procedure, ch. 26, \\ 1, an essential of the offence therein described, is the scienter. Failure of indictment to aver the scienter, is fatal.</p> <p>3. Idem—Public road—Contempt of court.—Under that section a “road,” which has merely been ordered to be opened, but has never been actually opened, is not a road, such as that section prescribes a penalty for obstructing. Resisting the execution of the court’s order to open such “ road,” is not an offence under that section, but is a contempt of the court.</p> <p>4. Idem—Evidence—Onus probandi.—Where one is indicted under said section, the onus of proving that the road alleged to have been obstructed was, at the time of the offence, a regularly established and open road, rests on the Commonwealth.</p>