Harley v. Commonwealth
| Decision Date | 28 September 1921 |
| Citation | 108 S.E. 648 |
| Parties | HARLEY. v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Hustings Court of Richmond.
One Harley was convicted of disorderly conduct, and she brings error. Affirmed.
A. O. Boschen and M. J. Fulton, both of Richmond, for plaintiff in error.
John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst Atty. Gen., for the Commonwealth.
The plaintiff in error, hereinafter called the defendant, was convicted by a justice for disorderly conduct on a street car, and sentenced to pay a fine of $10. She appealed to the bushings court, part. II, of the city of Richmond, where the Case was heard de novo and the trial was by jury. The jury found her guilty and imposed a fine of $10, which the trial court refused to set aside, and upon which it entered up judgment. To that judgment a writ of error was awarded by one of the judges of this court, pursuant to the statute providing that—
"In all criminal cases where petition for a writ of error is presented the same shall be granted as a matter of right" Acts 1920. c. 300.
It is assigned as error: (1) That the venue is not laid in the warrant of arrest; (2) that the warrant does not specify any act of disorderly conduct; (3) that the court erred in giving an instruction for the commonwealth; (4) that the court erred in permitting certain questions to be asked and answered; and (5) that the court erred in overruling defendant's motion to set aside the verdict as contrary to the law and the evidence. The last three assignments are dependent upon the bills of exception taken to support them. If the bills of exception are not parts of the record, these assignments cannot be considered.
Final judgment was entered against the defendant on February 10, 1920, and the court adjourned before the first Monday in March. The bills of exception were not applied for or obtained until May 8, 1920, which was not within the 60 days after final judgment, as required by section 6252 of the Code. The bills of exception are not parts of the record, and hence the assignments of error based thereon cannot be considered. Bragg v. Justus, 129 Va. ——, 106 S. E. 335. The fact that execution of the judgment was suspended under the provisions of section 6338 of the Code did not affect the finality of the judgment in that court.
A motion was also made to set aside the verdict for after-discovered evidence, but the motion was not made until after the adjournment of the term at which the final judgment was entered. The jurisdiction of the trial court over the case ended with the adjournment of the term, and it had no power to grant the motion. Allen v. Commonwealth, 114 Va. 826, 77 S. E. 66.
No objection was made in the trial court to the sufficiency of the warrant in any respect, and no demurrer thereto was interposed, and the defendant cannot raise the objection for the first time in this court that the warrant does not specify the acts of disorderly conduct complained of. If the specification was necessary, it could, and doubtless would, have been readily supplied. It is too late now to raise the objection.
In case of indictments, especially for serious offenses, venue must be alleged and proved. Early's Case, 93 Va. 765, 24 S. E. 936; Fitch's Case, 92 Va. 824, 24 S. E. 272; Anderson's Case, 100 Va. 860, 42 S. E. 865; West v. Commonwealth, 125 Va. 747, 99 S. E. 654. But in prosecutions for petty misdemeanors the same particularity is not expected or required in the charge made in the warrant, and where no objection to the warrant is made in the trial court, and no motion is made ho correct it, under the comprehensive provisions of section 4989 of the Code, this court will not reverse the judgment of the trial court for formal imperfections of the warrant, unless the ends of justice require it.
In Flint v. Commonwealth, 114 Va. 820, 822, 76 S. E. 308, 309, it is said:
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...on the subject. The circuit court had no power to grant the motion. Allen v. Commonwealth, 114 Va. 826, 77 S. E. 66, Harley v. Commonwealth, 131 Va. ——, 108 S. E. 648. For the same reasons, and upon the same authority, we must overrule the assignment based upon the refusal of the court to g......
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