Harrison v. Commonwealth

Decision Date11 March 1886
Citation81 Va. 491
PartiesHARRISON v. THE COMMONWEALTH.
CourtVirginia Supreme Court

Error to refusal of judge of circuit court of Cumberland county to award a writ of error to judgment of county court of said county, rendered November 25, 1884, and sentencing Emanuel Harrison, the plaintiff in error, to five months' imprisonment in the county jail, in accordance with the verdict of the jury finding him guilty of petit larceny, upon his appeal from the judgment of the justice upon the warrant charging him with that offence.

Opinion states the case.

William M. Flanagan, for the plaintiff in error.

Attorney-General R. A. Ayers, for the Commonwealth.

OPINION

LACY J.

The plaintiff in error was convicted before a justice of the peace in the county of Cumberland, in August, 1884, of the crime of petit larceny, under the first section of chapter twenty-five of the Criminal Code, Acts 1877-78, page 375, and sentenced to thirty days' imprisonment. He appealed to the county court of said county under the second section of the said chapter. At the September term of the county court 1884, the case was continued to the November term, for the defence, as the order shows. At the October term, however, next ensuing, it appearing that the order entered at the September term, set forth above, was by mistake, the said order of the September term was amended so as to conform it to the fact, and make it an order for the continuance of the case to that term; and then, at the said October term, an order was entered continuing the case to the November term following. At this term the prisoner was convicted, and his term of imprisonment fixed at five months in the county jail. Whereupon he moved in arrest of judgment and for his discharge, because, by the said order of the September term, there had been a discontinuance of the case. This motion was overruled, and the prisoner excepted. Upon appeal to the circuit court, the judgment of the county court was affirmed--the case being before this court on a writ of error to the judgment of the circuit court.

It is assigned as error that the county court entered at the September term an order of continuance to the November term. Citing the case of Amis v. Koger, 7 Leigh 223.

In this case it cannot be claimed that the accused was deprived of his constitutional right to a speedy trial, as is claimed, and " denied his chance of a trial at each term of the court," or that there had been any term of the court at which no order had been entered, as the record shows that an order of continuance was entered at each term of the court from his appearance in that court to his conviction. The order of the September term was corrected at the October term, and the case then continued to the November term, when he was tried with the result stated.

But if there had been no order at the October term of continuance it would not have operated as contended under the existing laws of this State. Section 26, chapter 201 of the Code of 1873 (Acts 1877-78, chapter 16, section 26), provides: " There shall be no discontinuance of any criminal prosecution by reason of the failure of the court to award process, or to enter a continuance on the record. "

The case of Amis v. Koger, supra, was decided in 1836 and arose before the act of April 16, 1831. R. C., 1819, page 142, section 21. Judge Carr said...

To continue reading

Request your trial
3 cases
  • Raine v. State
    • United States
    • Tennessee Supreme Court
    • 11 Diciembre 1920
    ...we think the question is settled adversely to such a contention, both in Tennessee and elsewhere. Pierce v. Bank, 1 Swan, 265; Harrison v. Commonwealth, 81 Va. 491; Ex Owens, 52 Ala. 473. Nor do we think that the defendant could insist that the court below should have dismissed this case af......
  • Raine v. State
    • United States
    • Tennessee Supreme Court
    • 11 Diciembre 1920
    ...we think the question is settled adversely to such a contention, both in Tennessee and elsewhere. Pierce v. Bank, 1 Swan, 265; Harrison v. Commonwealth, 81 Va. 491; Ex parte Owens, 52 Ala. Nor do we think that the defendant could insist that the court below should have dismissed this case a......
  • Brown v. Epps
    • United States
    • Virginia Supreme Court
    • 14 Febrero 1895
    ...on the statute has been upheld. See Thomas' Case, 22 Grat. 912; Read's Case, 24 Grat. 618; Wolverton v. Com., 75 Va. 910; and Harrison v. Com., 81 Va. 491. Inasmuch, however, as it does not appear that the constitutional question here under consideration was presented to the court in any of......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT