Granger v. Commonwealth

• Decision Date: 15 November 1883
• Citation: 78 Va. 212
• Parties: GRANGER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

78 Va. 212

GRANGER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 15, 1883

Absent, Richardson, J.

Error to judgment of hustings court of city of Richmond, sentencing plaintiff in error, James M. Granger, to confinement in jail for the period of nine months, and to pay a fine of three hundred and seventy-five dollars, on an indictment for publishing a malicious libel against one William J. Holmes and Laura, his wife. Opinion states the case.

Edgar Allen, for plaintiff in error.

Attorney General F. S. Blair, for the Commonwealth.

OPINION

HINTON J.

On the trial, the accused, after he had pleaded guilty to the indictment, introduced a witness, one Wm. B. Whitt, who testified " that having heard it rumored all through the market that the prisoner intended publishing the card about Holmes and wife, and meeting prisoner on Main street with the bundle of handbills under his arm, he asked the prisoner to give him one copy; that prisoner declined to give him a copy, saying that he wished to consult his brother before circulating them, but said, that if he, the witness, would step into a saloon near by, he would read it to him." Whereupon, as appears from the record, after the argument of the counsel had closed, and the jury had started to retire, the counsel for the accused requested the court to instruct the jury: " That, in considering the testimony in this case, they must regard the statement of the witness, Wm. B. Whitt, as to the rumors of the publication of the libel, as hearsay testimony only, and as such it can not be taken into consideration in this case."

This instruction, however, the court refused to give. And the action of the court in this respect is the ground upon which a reversal of the judgment of the court below is asked here. The objection is unsubstantial and cannot prevail. Assuming that the statement of the witness, Whitt, was as set out in the certificate of facts--that is, " that it was rumored that the prisoner intended publishing the card about Holmes and wife," & c., which is the only case in which these rumors could be regarded as hearsay--Phillip's Ev. § 577; 1 Greenl. Ev. § 101--still the refusal of the court to give the instruction directing the jury to exclude it from their consideration at the time that request was made, cannot be regarded as a sufficient ground for reversing the judgment of that court. For, without taking into consideration the...