Commonwealth v. Cawood

• Citation: 4 Va. 527
• Parties: The Commonwealth v. Benjamin Cawood
• Decision Date: 01 January 1826
• Court: Supreme Court of Virginia

4 Va. 527

The Commonwealth v. Benjamin Cawood

Supreme Court of Virginia

January 1, 1826

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This Case was adjourned to the General Court, by the Superior Court of Law for Wythe county, on the 15th of October, 1824. There was no Session of the General Court in November of that year, and at the Session held in June, 1825, the Counsel for the prisoner suggested that there was diminution in the record, and on their motion, a Certiorari was awarded to the Clerk of the Superior Court of Washington, from which Court, the venue had been changed to the Superior Court of Wythe. The General Court also failed to hold a Session in November, 1825, and at this Term this Case came on for adjudication. It will be necessary to make a full statement of the whole Case, as it appeared before the Court, in order that it may be rightly understood.

The Certiorari record from the Superior Court of Washington, shews that at a Court held by the Judge thereof, on the 26th April, 1824, David Campbell, foreman, and twenty others (naming them) were sworn a Grand Jury of Inquest for the body of the county, and having withdrawn from the bar to consult on their Presentments, after some time returned into Court, and presented an Indictment against John Walker, for larceny, " a true Bill; " an Indictment against Nancy Davenport for larceny, " a true Bill; " an Indictment against Mary Davenport for larceny, " a true Bill," and an Indictment against George Winniford for not having a road in repair, " a true Bill," and then the said Grand Jurors were adjourned till the next morning at ten o'clock.

On the next day the Grand Jury appeared in Court according to their adjournment, and withdrew from the bar to consult further on their Presentments, and after some time returned into Court, and presented an Indictment against Benjamin Bowman for perjury, " a true Bill; " another Indictment against the said Benjamin Bowman for perjury, " a true Bill; " an Indictment against Abraham Snodgrass, and Joseph Snodgrass, for obstructing the process of the Law, " a true Bill; " an Indictment against Moses Whitaker for an assault, " a true Bill," and an Indictment against Benjamin Grier for an assault, " a true Bill." They also made a Presentment against Samuel Caldwell, and Thomas Caldwell, for larceny, which is fully set out, and the record of the transactions of the Grand Jury, concludes thus: " And having nothing further to present they are discharged."

[It will be perceived that in this record of the proceedings of the Grand Jury, there is no notice taken of any Bill of Indictment against the Defendant, Benjamin Cawood.]

The next Order set forth is on the 1st May, 1824, during the same Term, and is as follows: " The Court deeming it necessary to secure the attendance of jurors for the trial of Benjamin Cawood, David Prator, and Polly Prator, accused of murder, from the lower end of the county of Washington, & c. therefore it is ordered, that the Sheriff proceed forthwith to summon as many of the freeholders as he can, to attend this Court on Monday next, for the purpose of forming a jury for the trial of the said prisoners."

The next order set forth in the record, is on Monday, the third day of May, and is as follows: " Benjamin Cawood, late of the county of Washington, husbandman, who, together with David Prator, labourer, and Mary Prator, spinster, stands indicted for murder, was led to the bar in custody of the keeper of the jail of said county, and thereof arraigned, and pleaded not guilty to the Indictment, and thereupon came a jury to wit, & c." The trial running to such length that it could not be concluded on that day, the jury were ordered to be kept together, with the usual charge.

The order of the next day, was as follows: " Benjamin Cawood, late of the county, & c. who, together with David Prator, labourer, and Mary Prator, spinster, stands indicted for murder, was again led to the bar, in custody of the keeper of the jail of said county, and the jury sworn in this cause yesterday, were brought into the Court by the Sheriff, & c. & c." The trial continued the fourth, fifth, sixth, seventh and eighth days of the month, and on each day a similar order was made on the record, as the one which is copied last. On the evening of the eighth, which was the last day of the Court, the jury retired to consult of their verdict, and after some time, returned, declaring they could not agree on a verdict. A venire facias de novo, returnable to the first day of the next Court, was then awarded, and the prisoner remanded to jail.

At the next Superior Court held for the said county of Washington, on the 29th September, 1824, the record proceeds: " Benjamin Cawood of the county of Washington, husbandman, who stands indicted for murder, was again led to the bar, & c. and thereupon, he presented his petition to the Court, praying that the venue for his trial on the said Indictment, may be changed to some other county." The Court thereupon, and for good cause shewn, ordered the venue to be changed to the Superior Court of Wythe, which was to commence on the 11th day of the next month.

There is then copied into the Certiorari record, from Washington, as well as into the copy of the record sent from Washington to Wythe, and from that Court to this, an Indictment against Benjamin Cawood, and David Prator, and Mary Prator, for the murder of Mary Cawood, the wife of the said Benjamin Cawood.

In the record sent from Wythe, the Clerk of that Court introduces the Indictment which he copies, by the following remark or certificate: " The Bill of Indictment against Benjamin Cawood, David Prator and Polly Prator, as certified to this Court, is in the words and figures following, to wit:" Then follows the Indictment.

In the Certiorari record, sent from Washington, the Clerk of that Court introduces the Indictment by the following certificate. " The Indictment on which Benjamin Cawood was arraigned at the Spring Term of the Circuit Court of Washington county, in the year one thousand eight hundred and twenty-four, to which he pleaded not guilty, and upon which, he was tried at the said Term, is in the words and figures following:" Then follows the Indictment.

At the foot of the Indictment as copied into the record sent from Wythe is this certificate, made by the Clerk of the Superior Court of Washington: " Presented at the April Term, 1824, of the Superior Court of Law holden in and for the said county of Washington, in the Commonwealth of Virginia."

A certificate in the same words, is copied into the Certiorari record from Washington.

In the former there is also added, a certificate in these words: " Endorsed on the back of the Indictment, of which the above is a copy; 'A True Bill,' D. Campbell, foreman."

In the latter, the additional certificate is in these words: " With an endorsement on the said Indictment, in these words: 'A True Bill,' D. Campbell, foreman."

[It is apparent, that these certificates of the Clerk of Washington, are not copies from the records of that Court. The introductory certificate on the Certiorari record, was obviously made at the period when the record was certified by the Clerk in obedience to the process of the General Court; and the certificate put at the bottom of the copy of the Indictment, appears to have been written at a time posterior to the April Term, 1824.]

In obedience to the order of the Court changing the venue, the prisoner was put to the bar of the Superior Court of Wythe, on the 12th October, 1824, when the following entry was made:

" Benjamin Cawood, late of the county of Washington, husbandman, who, together with David Prator, labourer, and Polly Prator, spinster, stands indicted for murder, was led to the bar, & c. and moved the Court that he be not put on his trial; that the Indictment be dismissed for want of jurisdiction in this Court, and that he be discharged from imprisonment; because as he alleged, it does not appear by the record, that the fact charged in the Indictment, has been examined by the County Court of Washington; that it does not appear that the jury formerly impanelled in this Case, were discharged; and, that it does not appear by the record, that the Indictment was found by the Grand Jury."

The Superior Court of Wythe then adjourned, with the consent of the prisoner, the following questions for novelty and difficulty, to the General Court.

1. What is the legal effect of an omission, on the part of the Clerk of the Circuit Court of Washington, to enter on the order book, that the Grand Jury at the last April Term of that Court, had found an Indictment against Benjamin Cawood, David Prator and Mary Prator, " A True Bill?"

2. Can such an omission be supplied by resorting to the paper purporting to be an Indictment, copied into the record by the Clerk, and the endorsement thereon purporting to have been made by the Grand Jury, finding it to be a true bill?

3. Does the subsequent plea of not guilty, pleaded by the prisoner Benjamin Cawood, found in the record, cure such omission as to him?

4. If the omission aforesaid, cannot be supplied by resorting to the paper copied into the record as an Indictment, and the endorsement thereon, " A True Bill," and if the subsequent plea of not guilty, pleaded by the said Benjamin Cawood, does not preclude him from making this objection, is he to be discharged from imprisonment?

5. If he is to be discharged from imprisonment, can the Court legally direct his immediate arrest, and removal to the county of Washington,...