Bond v. Commonwealth

• Decision Date: 30 June 1887
• Citation: 3 S.E. 149,83 Va. 581
• Parties: Bond v. Commonwealth. (Two Cases.)
• Court: Virginia Supreme Court

3 S.E. 149

83 Va. 581

Bond

v.Commonwealth. (Two Cases.)

Supreme Court of Appeals of Virginia.

June 30, 1887.

1.Arson—Evidence of Threats.

Upon a trial for arson, evidence of threats made by the accused against the owner of a building in immediate proximity to the burned structure, and which caught on tire, is relevant.

2.Criminal Practice—Trial—Presence of Accused.

After convictions of arson and house-burning, motions for new trials were made on behalf of the accused, but in his absence.Subsequently, while personally present in court, he was given an opportunity to renew the motions, but he declined to do so.Held, that the error of proceeding with the motions in his absence was thereby cured.¹

3.Same—New Trial—Cumulative Evidence.

Where the after-discovered evidence, upon which a motion for a new trial in a criminal case is predicated, is merely cumulative, it isnot error to deny the motion.

Appeal from circuit court, Bedford county.

Patterson & Bruce, for plaintiff in error.R. A. Ayers, Atty. Gen., for defendant in error.

Fauntleroy, J.On the twenty-fifth day of October, 1886, two indictments were found by the grand jury of Bedford countycourt against the plaintiff in error, George Bond; one charging him with burning, "feloniously and maliciously, " the tobacco barn owned by Robert Hewitt, and at the same time, also, another tobacco barn owned by Moorman Parker, George Parker, and Fannie Parker; and the other charging him with burning, "feloniously and maliciously, " the barns of E. T. Walker and O. P. Bell.The offenses are charged to have been committed on the same day, viz., the fifteenth day of October, 1886.The said indictments were returned into court, and presented by the said grand jury, marked or indorsed, respectively: "A True Bill.(No. 1.)""A True Bill.(No. 2.)"On Tuesday, the second day of the February term of the county court of Bedford county, the accused was tried upon the indictment, "No. 1, " and convicted by the jury, whose verdict fixed his confinement in the penitentiary for the period of 10 years; and the prisoner was remanded to jail.On Saturday, the fifth day of the said term of the said court, the prisoner's attorney made a motion, in the absence of the prisoner, to have the verdict set aside, and to have a new trial granted, upon the ground, that on the day after his trial the prisoner had discovered new evidence material to the issue, which, by due diligence, he could not have known before, —which said motion the court heard and overruled in the absence of the prisoner, and without an order to bring him into court, to which ruling the prisoner, by his counsel, excepted.On Wednesday, the ninth day of the term, the prisoner was brought into court, and, on the part of the court and the commonwealth, it was offered, and pressed upon him, to renew his motion for a new trial; which the prisoner declined to do; as his motion for a new trial had been made and overruled on Saturday previous, the fifth day of the term.The prisoner thereupon moved the court to set aside the verdict, and grant him a new trial, upon the ground that, when the motion was made, on Saturday, the fifth day of the term, he was not present in court, which motion the court overruled, and to which ruling of the court the prisoner excepted.The court assigned as his reason for overruling the said motion that he had the prisoner brought into court, and "it being suggested to the court that, when the prisoner by his attorney made his motion for a new trial, on Saturday last, he was not in court, it is ordered that the order made on that day, overruling his motion for a new trial, be set aside; and the prisoner being now in court, he is asked to renew his motion for a new trial, if he desires so to do; and thereupon he declines to do so.Whereupon the court overruled the motion made on Saturday last, and pronounced judgment against the prisoner according to the verdict of the jury."Prom this judgment of the county court of Bedford county the prisoner petitioned for a writ of error and supersedeas, which was refused by the judge of the circuit court of Bedford county, to which said refusal a writ of error and supersedeas were allowed him by one of the judges of this court.

On the fourth day of March, 1887, being the fourth day of the March term of the county court of Bedford county, the prisoner was tried by a jury, in said court, upon the indictment "No. 2, " who found a verdict of guilty against him, and fixed his term of confinement in the penitentiary at three years, and the prisoner was remanded to jail.On Saturday, the fifth day of the term, the prisoner's counsel, in his absence from the court, made a motion for the verdict to be set aside, and a new trial to be granted to the prisoner, upon the ground that it was contrary to the law, inasmuch as testimony not relevant to the issue had been admitted upon the trial; which motion the court overruled, and the prisoner excepted.

On Wednesday, the ninth day of March, 1887, the prisoner, George Bond, who stands convicted of house-burning, "No. 2, " was this day again led to the bar of the court, in custody of the sheriff of the county of Bedford, and it being suggested to the court that when the prisoner, by his attorney, made his motion for a new trial, on Saturday last, the prisoner was not in court, it is ordered that the order entered on that day, overruling his motion for a new trial, be set aside; and the prisoner being now in court, he is asked to renew his motion for a new trial, if he desires so to do, and thereupon he declines to do so; whereupon the court overruled the motion made by the prisoner on Saturday last, and proceeded to pronounce judgment against him according to the verdict of the jury.And thereupon the prisoner moved the court to set aside the verdict rendered against him, and the sentence passed in the case, but to grant to him anew trial, on the ground that, on Saturday last, when his motion for a new trial was made and overruled, the prisoner was not in court, which motion was overruled by the court.The prisoner petitioned the judge oi the circuit court of Bedford county for a writ of error and supersedeas to the aforesaid judgment of the county court, which were refused, whereupon he applied for, and obtained, from one of the judges of this court, a writ of error and supersedeas to the said judgment.

By agreement of the attorney general and the counsel for the plaintiff in error, these two cases have been argued and submitted as one case; the allegederrors complained of being exactly the same in both cases.The records in both cases show that, when the prisoner, by his counsel, made his motion for new trials, he did not appear in person, and was not in the court when the court considered and overruled the said motions.Bishop, on Criminal Procedure, § 682, says: "It is a principle pervading the entire law of procedure in criminal cases, that, after indictment found, nothing shall be done in the cause in the absence of the prisoner.Citing in the note Hooker's Case, 13 Grat. 763. Yet the doctrine of waiver of rights, discussed in a previous chapter, may, to some extent, modify this principle so as to allow of proceedings in the absence of the defendant, when he does not choose to be present; and especially when his convenience is consulted by having the steps taken while he is absent.Yet the right of waiver seems not to be carried very far here."In Jackson's Case, 19 Grat. 656, it was held that the prisoner "is to be considered as standing upon all his legal rights,...