Brown v. Commonwealth

• Decision Date: 19 June 1890
• Citation: 86 Va. 935,11 S.E. 799
• Parties: Brown. v. Commonwealth.
• Court: Virginia Supreme Court

11 S.E. 799

86 Va. 935

Brown.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

June 19, 1890.

Criminal Law—Evidence—Accomplices—Arson.

1. Though a witness on a trial for arson was charged as an accomplice in the indictment, and has been found guilty by the jury, he is competent where he has not yet been sentenced.

2. Declarations of such witness, made in defendant's presence, that he would have a certain prisoner out of jail or "burn the town before morning" are not admissible where there is no evidence of a conspiracy between such witness and defendant.

Error to county court, Franklin county.

This was an indictment for arson. Defendant was convicted, and brings error.

Mr. Dillard, for plaintiff.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lewis, P. This case is similar to Early's Case, ante, 795, (just disposed of.) At the trial a number of exceptions to rulings of the court were taken by the prisoner, of which, in the view we take of the case, it will be necessary to consider but two only.

The first exception was to the action of the court in permitting George Early to be sworn and testify as a witness for the commonwealth. The ground of the objection was that witness was an accomplice in the clime charged in the indictment, and had been found guilty thereof by the jury that tried him. It appears, however, from the bill of exceptions that he had not then been sentenced, and hence he was a competent witness in the case. 1 Greenl. Ev. §§ 375-379; Nannie.Woods' Case, ante, 798, (just decided.)

The next exception relates to the action of the court in permitting the witnesses Jeter and Pollard to testify to certain declarations of Early. The burning occurred on the 7th day of October, 1889, in the night. In the afternoon of that day the sergeant of Rocky Mount, in which town the burning occurred, arrested one Henry Smith, a negro, for disorder, and placed him in jail. When arrested, a number of negroes gathered around him, and followed him to the jail, among whom were Early and the prisoner. Both of the above-mentioned witnesses testified that they heard Early say, in the presence of the prisoner, who was also cursing and swearing about Smith's arrest, that the negro had no show in that town, and had had none since it was incorporated, 19 years before; that he had offered to pay Smith's fine, but nothing would do but they must put him in jail; and that he added: "I will have him out of there or burn the d——d town before morning." Another witness,...