Lawrence v. Commonwealth

• Decision Date: 16 January 1890
• Parties: Lawrence v. Commonwealth.
• Court: Virginia Supreme Court

10 S.E. 840

(86 Va. 573)

Lawrence

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Jan. 16, 1890.

Gaming—Continuance—Indictment—Appeal.

1. Under Code Va. 1887, § 4010, which provides that, on an indictment under the gaming act, process shall be issued immediately, and if the accused appear, and plead, the trial shall proceed without delay, a continuance in a prosecution for keeping a lottery is properly refused, though it forces defendant into an instantaneous trial.

2. Under Code Va. 1887, § 4011, which providesthat no exception shall be allowed for any defect or want of form in any indictment under the gaming act, objections that the record did not set forth the appointment and oath of the foreman of the grand jury, and that the names of the grand jurors and witnesses on whose information the indictment was found were not written at the foot of the indictment, are properly overruled.

3. A plea to an indictment setting forth that a third person, not the commonwealth's attorney or an officer of the court, was sent before the grand jury, during its deliberations, and that he assisted in the examination of " other witnesses, " is properly rejected, as it does not allege that the person was not a witness, but inferentially that he was.

4. A statement in the record that defendant's plea was rejected, and that "defendant excepted to various rulings of the court, " is not sufficient, in the absence of a bill of exceptions, to warrant a reversal of the action of the trial court.

Geo. A. Mushbach and Samuel G. Brent, for plaintiff in error.

Lacy, J. This is a writ of error to a judgment of the corporation court of the city of Alexandria rendered on the 18th of July, 1889. The case is a prosecution against the plaintiff in error, under chapter 187 of the Code of Virginia, for keeping a lottery, selling lottery tickets, and promoting and managing a lottery, who, being indicted, tried, and convicted therefor, applied for and obtained a writ of error to this court.

1. The first ground assigned as error is that the court refused to grant to the plaintiff in error a continuance of his case; that the matter of continuances is one within the discretion of the trial court, but that discretion must be exercised soundly, and not arbitrarily; and that the exercise of that discretion in this case operated to the disadvantage of the plaintiff in error, as the refusal of the court to grant his motion for a continuance forced him into an instantaneous trial, and deprived him of all opportunity to prepare for his defense. This assignment of error is sufficiently answered by section 4010 of chapter 196 of the Code of Virginia, which is as follows: "Sec. 4010. On any indictment or presentment not embraced in the preceding section, [which is as to petty tines,] founded on any provision of chapter one hundred and eighty-seven, [gaming act,] or on a violation of any provision of the laws relating to the public revenue, process shall be issued immediately. If the accused appear and plead to the charge, the trial shall proceed without delay. " In this case the accused appeared and pleaded to the charge, and the trial did proceed without delay. The law was complied with, and the continuance asked for was properly refused, and there is no error in this assignment.

2. The second assignment of error is that the court erred in overruling the motion of the accused to quash the indictment because the record did not set forth the appointment and oath of the foreman.

3. And the third assignment is that the court erred in rejecting the plea of the accused that the indictment was not found upon the evidence of two of the grand jury, nor upon the testimony of witnesses sworn and sent to the grand jury, whose names, both of the grand jurors giving the information and of the witnesses, must be written at the foot of the indictment. The law requires that these names shall be written at the foot of the indictment. To render it complete, this must be done, and when done these constitute an essential part of the indictment; and in this case the record shows that the indictment was perfect in this respect; but, if it had been otherwise in this case, and under this prosecution, the plea set up no valid defense, being as to matter of form. Section 4011 of the Code of Virginia answers both of these assignments. It is there provided that (section 4011) "no exception shall be allowed for any defect or want of form in any presentment, indictment, or information mentioned in either of the two preceding sections, [section 4009, petty offenses limited to a fine not exceeding $20; section 4010, supra, gaming act,] but the court shall give judgment thereon according to the very right of the case." There was no error in the action of the court in overruling the motion to quash, and in rejecting a plea which set up any want of form in the indictment.

4. The fourth assignment of error is that the court erred in rejecting the second plea of the accused, by which it is set forth "that after the said grand jury had been impaneled, and had retired to their rooms for the purpose of diligently inquiring into, and true presentment making of, all such matters as might be given to them in charge, or come to their knowledge, touching violation of the laws of this commonwealth, including the matter alleged in this indictment, and while the presentment and this indictment of this defendant was being considered and deliberated upon by the said grand jury, one George R. Bowers, who was not then, and is not now, the commonwealth's attorney of said city, nor an officer, nor a sworn officer, of the said court, nor a member of the said grand jury, and who was then under.indictment, and found at the June term of said court, and awaiting trial for a like offense to that charged against this defendant, who has not yet been called to respond to said indictment, and has not yet been tried therefor, was sent by the said court before the said grand jury at the time aforesaid, and was then and there allowed and permitted by the said court and the said grand jury to remain, and did remain, in the room with said grand jury during the time the said grand jury were engaged in hearing the testimony of other witnesses duly sent before said grand jury to testify touching this presentment, and did then and there ask and propound the questions, and prompt and suggest and control the questions, put to such witnesses by said grand jury touching this indictment, and the offense therein alleged against the defendant, and the examination of such witnesses by said grand jury touching the same, and did remain in the room with said grand jury during their deliberations upon the said presentment and indictment." In this state the statute does not prescribe who may be present, and the grand jury, although constituted by statute, is to follow in its procedure the rules of the common law, unless a statute was otherwise provided. The rule as to secrecy prescribed bythe English law, and embodied in the oath, is omitted from the oath prescribed by our statute. "As to the presence of persons not of the grand jury, a distinction appears to be made, " says Mr. Bishop "between the hearing of the testimony and the deliberations thereon." 1 Bish. Crim. Proc. § 861. In some early instances, not as of common practice, but, it seems, at the request of the officers prosecuting for the king, the evidence was produced publicly in open court to the grand jury, yet their deliberations were private. Bex v. Shaftesbury, 8 How. State Tr. 759, 771, 774, 775, 820, 821; Poulterers' Case, 9 Coke, 55ft. In modern times, however, the grand jury, though deemed a part of the court, always sits by itself while receiving testimony; and it is not believed that a departure from this practice, even in an exceptional instance, would now be...