Gilligan v. Commonwealth

• Decision Date: 31 January 1901
• Court: Virginia Supreme Court
• Parties: GILLIGAN. v. COMMONWEALTH.

99 Va. 816

37 S.E. 962

GILLIGAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 31, 1901.

CRIMINAL LAW—MURDER—COURT RECORDS— RENDERING VERDICT—PRESENCE OF DEFENDANT—TRIAL COURT.

1. Code, § 4016, provided that the county courts, except where otherwise provided, should have exclusive original jurisdiction of indictments within their respective counties, and that a person charged with a capital felony could, on his arraignment, demand to be tried in the circuit court. Acts 1893-94, p. 270, amended this section, and omitted therefrom the provision for trial in the circuit court. Held that the right to remove a prosecution for murder to the circuit court was not preserved by the act of 1891-92, providing that the right of removal should be exercised before a motion for continuance, since such act did not give a right to removal, but merely regulated its exercise, and, if it did give a right of removal, it was repealed by the act of 1893-94.

2. The record in a prosecution for murder recited that defendant was again led to the bar, and the jury, having heard in full the argument of counsel, retired to their room to consult of their verdict, as follows, to wit, "We, the jury, find the prisoner guilty of murder in the second degree, as charged, " whereupon the prisoner, by his counsel, moved the court not to proceed to judgment on the verdict aforesaid, and further moved the court to have the verdict of the jury set aside as contrary to the law and the evidence, and grant the prisoner a new trial, which said motions were continued until the next morning, and the prisoner was again remanded to jail. Held, that such record was not objectionable, in that the verdict is not shown to have been received in open court and in the presence of defendant, since while consulting of their verdict they were" still in court, and the action of defendant in himself moving the court not to proceed to judgment on the verdict, immediately after it was rendered, shows that he was present.

3. Where, after a verdict of murder was rendered against defendant, and after his motion in arrest of judgment had been denied and judgment had been entered, his time for preparing a bill of exceptions was extended, on his motion, to a time certain, and at such time his counsel announced in open court that he had no bill of exceptions to offer, the judgment should not be set aside or defendant be discharged because he was not present when such announcement was made, since, though he was entitled to be present in court when any action was taken in his case, the court took no action at that time, and was not called on to take any, as defendant had not acted on the option given him to then present a bill of exceptions.

Phlegar and Buchanan, JJ., dissenting.

Error to Isle of Wight county court.

A. C. Gilligan was convicted of murder, and he brings error. Affirmed.

Coalter & Wise, for plaintiff In error.

A.J. Montague, Atty Gen., for the Commonwealth.

KEITH, P. Gilligan was indicted in the county court of the Isle of Wight for the murder of C. B. Turner, was tried, found guilty, and sentenced to confinement in the penitentiary for the term of 18 years.

The case presents some unusual features. No bill of exceptions was taken during the trial, and there is, therefore, no record of the rulings of the court upon the admission of testimony, upon the instructions to the jury, nor of the evidence introduced upon the trial.

After the prisoner had been conveyed to the penitentiary a transcript was obtained of the record as it appears upon the order book of the county court of Isle of Wight county, and upon that transcript a writ of error was awarded, and the case is now before us.

Upon his arraignment in the county court the prisoner demanded to be tried in the circuit court, which motion was refused, and this action of the court constitutes one of the assignments of errors before us.

The ruling complained of was clearly right. By Acts 1893-94, p. 270, section 4016 of the Code was amended. The provision under which indictments for felonies punishable by death, which had theretofore been removed, upon motion of the prisoner, to the circuit courts, was omitted; and the county courts were clothed, except where otherwise provided, with exclusive original jurisdiction for the trial of all presentments, indictments, and informations for offenses committed in their respective counties.

The contention of the prisoner's counsel is that by an act passed during the session of 1891-92, which was not amended by the amendment to section 4016 just referred to, the right to remove the case to the circuit court was preserved. In this view we cannot concur. The act of 1891-92 merely provides that the right of removal, which at that time undoubtedly existed, was to be exercised by the prisoner before a motion for a continuance was made by him, and not thereafter. The reason for the enactment of this statute is obvious. The right of removal had been resorted to as a means of delaying the administration of justice. The prisoner would defer making a demand which devested the jurisdiction of the county court until all preparation had been made for his trial, and then defeat this preparation by removing the case to the circuit court. It cannot be doubted that the circuit court, when it took jurisdiction of a case removed to it from the county court, received and tried it under its original jurisdiction; and section 4016, as amended by the Acts of 1893-94 expressly declares that county courts shall have exclusive jurisdiction of such a case as that under consideration. The act of 1891-92 could not, standing alone, have conferred the right of removal, and, If it did, then, being inconsistent with the more recent act of 1893-94, it must perish. The two cannot stand together.

This view of the law renders It unnecessary to consider the effect of an act passed at the session of the general assembly of 1899-1900.

The next assignment of error arises upon the record of the proceedings in the county court of June 23, 1900, which is as follows:

"A. C. Gilligan, who stands indicted of murder, was again led to the bar in the custody of the sheriff of this county; and the jury which has been impaneled and sworn for bis trial, and adjourned on yesterday, appeared In court according to their adjournment, and, having heard in full the argument of counsel, retired to their room to consult of their verdict as follows, to wit: 'We, the jury, find the prisoner, A. C. Gilligan, guilty of murder in the second degree, as charged in the within indictment, and ascertain his term of imprisonment to be eighteen (18) years In the penitentiary, '—whereupon the prisoner, by his counsel, moved the court not to proceed to judgment upon the verdict aforesaid, and further moved the court to have the verdict of the jury set aside as contrary to the law and the evidence, and grant the prisoner a new trial, which said motions were continued until to-morrow morning at ten o'clock. And the prisoner, A. C. Gilligan, was again remanded to jail."

The contention of the prisoner is, first, that a verdict upon an indictment for a felony must be rendered by the jury in open court in the presence of the prisoner, and received and recorded by the court; that these essential facts must appear from an inspection of the record, and no intendment will supply their omission, or the omission of any one of them; that the maxim, "Omnia præsumuntur rite et solemniter esse acta, " has no application to records made in trials for felony; and that courts cannot resort to any presumption to supply the omission from the record of that which should appear by the record.

To all this we give an unqualified assent. The question remains, what does the record before us establish?

It is earnestly argued that the extract which we have above quoted does not show that the verdict was rendered in open court; that all the averments of the record may be true, and yet that the verdict may not have been agreed upon by all of the jurors; and that it may have been rendered elsewhere than in the presence of the court and the prisoner.

Reliance is placed in support of this position upon the case of Com. v. Cawood, 2 Va. Cas. 527. In that case Benjamin Cawood was put upon his trial for a felony in the county of Washington. The trial was greatly protracted, and on the eighth and last day of the court the jury retired to consult of their verdict, and after some time returned and declared that they could not agree. Thereupon the jury was discharged and the case was continued until the next term. At the next term of the court, when the prisoner was again led to the bar, he prayed that the venue for his trial might be changed to some other county, and thereupon it was removed to the circuit court of Wythe. When put to the bar for trial in Wythe county the prisoner moved that he be "discharged from imprisonment because it does not appear by the record that the indictment against him was found by the grand jury." Thereupon, under the practice that existed at that time, the question presented, being one of novelty, was, with the consent of the prisoner, adjourned to the general court, to say:

"(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 indorsement 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...