Howell v. Commonwealth

• Decision Date: 10 April 1890
• Citation: 11 S.E. 238,86 Va. 817
• Court: Virginia Supreme Court
• Parties: Howell. v. Commonwealth.

11 S.E. 238

86 Va. 817

Howell.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

April 10, 1890.

Criminal Law — Jurisdiction—Courts—Practice.

1. Code Va. § 4016, gives county courts exclusive jurisdiction of offenses committed in their respective counties, and provides that one charged with a felony punishable with death may, on his arraignment in the county court, demand to be tried in the circuit court; that on such demand he shall be remanded for trial in said circuit court; and that the clerk of the county court shall certify to the circuit court a transcript of the record and copies of the indictment, etc. Held, that where one arraigned for murder in the county court elects to be tried in the circuit court, the latter has exclusive jurisdiction to try the cause, and cannot sit as an appellate tribunal to consider supposed errors of the county court, where the record is not transmitted to it; and an order by it remanding the cause to the county court for trial is erroneous, and confers no jurisdiction on the latter.

2. It is error for the county court to require defendant to make his election as to the court in which he will be tried before it will consider his motion for continuance.

Phlegar & Johnson, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lacy, J. This is a writ of error to a judgment of the circuit court of Floyd county, rendered at its November term, 1889, affirming a judgment of the county court of the said county rendered at its July term, 1889. At the December term of the county court of Floyd (1888) the plaintiff in error was indicted for the murder of one Henry Smith; and Hundley Howell, the father of John Howell, the plaintiff in error, was at the same time indicted for felonious assault upon the said Henry Smith. At the January term of the said court (1889) the said indictments were disposed of by nolle prosequi, by leave of the court, and the parties, John and Hundley Howell, jointly indicted for murder. The parties were arrested, and, at the calling of the case at the February term next succeeding, the accused moved a continuance, on account of the absence of their witnesses; but the court refused to entertain this motion until after their arraignment, and they excepted. Upon their arraignment they elected to be tried in the circuit court of the said county. At the May term, 1889, of the said circuit court, the said parties were produced before the said court; but the cause, and copies of the indictment and proceedings in the said county court, had never been certified to the said circuit court. However, the court considered and acted upon uncertified copies of the same informally produced before it, whereupon the following order was entered in the said circuit court: "The prisoners this day, being brought into court, before pleading, moved the court to remand them to the county court of Floyd county, and alleged as causes to sustain their motion various errors committed by the said county court, with their several bills of exceptions, as part of said record; and, this court being of opinion that there are errors in the judgment of the said county court in refusing to allow the prisoners the right to make their motion for a continuance before their arraignment, though the court perceives no other errors, yet for this error it is ordered that the motion of the prisoners be sustained. And it is ordered that the prisoners be remanded to the county court of Floyd county for further proceedings on said indictment to be had thereon in conformity with the order; and, by consent of prisoners and the attorney for the commonwealth, the witnesses for the commonwealth, with the witnesses for the prisoners, who have been recognized to this court, were recognized to appear on the first day of the July term, 1889, of Floyd county court. And the prisoners were remanded to jail for safe-keeping." At the July term, 1889, of the said county court, the said parties were again brought before that court, but they objected to the trial of their case in that court because they had elected to be tried in the circuit court of said county upon their arraignment in the said county court, and the record and proceedings had never been certified to the circuit court as required by law; but the county court overruled their objection, and proceeded with the trial, and the prisoners excepted. The accused thereupon demurred to the indictment, which demurrer the court overruled. The said parties thereupon elected to be tried separately, and the attorney for the commonwealth elected to put the plaintiff in error on trial first, whereupon he pleaded not guilty, and the trial proceeded; and upon the trial the said plaintiff in error was found guilty of murder in the second degree, and the jury ascertained the period of his confinement in the penitentiary at nine years. The plaintiff in error moved to set aside the verdict for uncertainty, and that the verdict was not warranted by the law and the evidence, which motion the court overruled; and the accused excepted. Whereupon the said plaintiff in error moved in arrest of judgment, because...