Hooker v. Commonwealth

• Decision Date: 23 November 1855
• Citation: 54 Va. 763
• Parties: HOOKER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

54 Va. 763

HOOKER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 23, 1855

1. A house though it was built for a dwelling-house and had been used as such, and although it was about to be used as such again, yet having been unoccupied for ten months previous and being unoccupied when it is burned, is not a dwelling-house within the meaning of the statute. Code, ch 192, § 2, p. 727.^[a1]

2. A verdict having been found against a prisoner, he moves the court to set it aside as contrary to evidence; which motion is on another day overruled. On the day when the motion is made and also when it is overruled, the record states that the prisoner appeared by attorney; and there is nothing in the record to show that he was present. This is error.

John Hooker was indicted in the Circuit court of Patrick county for burning three houses, one of them an unoccupied dwelling-house, the property of Spencer F. Nowlin, situated in the county of Patrick. The case is stated by Judge SAMUELS in his opinion.

Stanard, for the prisoner, and the Attorney General, for the commonwealth, submitted the case.

SAMUELS J.

The plaintiff was indicted in the Circuit court of Patrick county, for having " feloniously and maliciously set fire to and burned three houses, to wit, an unoccupied dwelling-house, kitchen and smoke-houses and some fodder being the property of Spencer T. Nowlin."

Upon the trial evidence was given tending to prove that the building described as a dwelling-house had been built for and used as a dwelling-house and for no other purpose, (except as a place of deposit for some fodder for a short time,) until about ten months before it was burnt; that the owner had been in the habit of renting it out, and had a short time before it was burnt rented it as a dwelling, and ordered it to be cleaned out for the tenant, who had not taken possession.

The plaintiff on the trial moved the court to instruct the jury, if they believed him guilty, that upon the facts above stated his offense did not come within the second section of chapter 192 of the Code of 1849; which instruction the court refused to give: and thereupon the plaintiff filed his bill of exceptions number one.

The jury having found the plaintiff guilty on the 21st of April 1855, the attorney for the plaintiff on the 24th of April moved the court to set aside the verdict as being contrary to evidence. On the 26th of April the court overruled the motion to set aside the verdict, and rendered judgment thereon. The entries upon the record made on the 24th and 26th days of April respectively, show that the plaintiff appeared by attorney, and there is nothing in the record to show that he was present in court in his proper person on either of those days.

The plaintiff filed his bill of exceptions number two to the opinion of the court overruling his motion to set aside the verdict; and in this exception is set forth all the facts proved at the trial. No question is made, or can be made upon this part of the record, except that the building alleged to be a dwelling-house, was not such, within the true intent of the statute. The facts bearing on this question are the same as those set out in the first bill, and further, that the buildings burnt were the property of Nowlin; that they were one mile distant...