Mackaboy v. Commonwealth

• Decision Date: 01 January 1821
• Citation: 4 Va. 268
• Parties: Robert Mackaboy, Lewis Courtney and John Strickler, v. The Commonwealth
• Court: Virginia Supreme Court

4 Va. 268

Robert Mackaboy, Lewis Courtney and John Strickler, v. The Commonwealth

Supreme Court of Virginia

January 1, 1821

This was an adjourned Case from the Superior Court of Law of Spottsylvania county. Information, on oath, was given by one of the Constables of the town of Fredericksburg, to three of the Justices of the town, that the Plaintiffs in Error, and sundry others, were guilty of a riot, rout, or unlawful assembly, at the house of Kitty Ship, in the said Corporation, on the night of the 26th December, 1818, to the terror of the citizens, many of whom they had beaten, & c. A Warrant, bearing date the 4th January, 1819, was thereupon issued by the three Justices, directed to the Sergeant commanding him to cause twenty-four lawful men of the said Corporation, to come before them at, & c. on the next day, to enquire for the Commonwealth, of certain riots, & c committed by the said persons, (by name.) At the same time they issued a Summons, to the Constable directed, commanding him to cause the said persons, (by name), to appear at the time and place in the Warrant mentioned, when and where a jury would be sworn to enquire of the riots, & c. said to have been by them committed. On the day appointed, the jury appeared, and the persons charged as rioters, appeared by Counsel. The jury were duly sworn, and brought in a verdict in the following words: " We, of the jury, find Robert Mackaboy, Lewis Courtney and John Strickler, guilty of the riot, but with different degrees of criminalty; the others charged, we find not guilty. Robert Mackaboy, to be imprisoned for three Calendar months, and to pay a fine of fifty dollars; Lewis Courtney, to be imprisoned one Calendar month, and to pay a fine of twenty dollars; John Strickler to be imprisoned one hour, and to pay a fine of five dollars." The jury was dismissed, and the same three Justices, on the 9th January, issued a Capias, to the Sergeant directed, commanding him to bring the said Mackaboy Courtney and Strickler, before them, to shew cause why the verdict of the said jury should not be carried into effect, and to hear judgment.

Before the service of this Capias, the Defendants petitioned one of the Judges of the General Court (in vacation), for a Certiorari, for the purpose of removing before the Superior Court of spottsylvania, the record and proceedings had before the said Justices, in the matter of the said conviction: Which Writ of Certiorari was awarded, and the Clerk of the Superior Court having issued the Writ, it was duly served on the Justices, who thereupon certified the record and proceedings as above set forth.

The Superior Court adjourned to the General Court this Case, for their decision on the following questions:

1. Can a Certiorari be properly awarded, after a verdict, against rioters under the Act of Assembly referred to in the record of the proceedings? (The Act for the suppression and punishment of riots, routs, and unlawful assemblies; passed December 4th, 1786. See 1 Rev. Code of 1819, ch. 142, p. 556.)

2. Ought the Defendants to have been tried and convicted, without an Indictment being found against them, or without being informed by some regular proceeding of the cause, and nature of the accusation against them?

3. What ought to be the judgment of the Court in this Case?

After due consultation amongst the Judges, the following opinion and judgment were pronounced:

OPINION

After due consultation amongst the Judges, the following opinion and judgment were pronounced:

Smith, J. (After stating the Case.).

As the first question, it may be observed, that it is a general rule, well established, that in Cases before Justices of the Peace, orders, summary proceedings, and trials before newly created jurisdictions, who proceed not according to the course of the Common Law; and where the party cannot have a Writ of Error, he shall have a Certiorari. ^[a] And further, the Certiorari may be awarded after verdict, and before judgment, as declared by Lord Holt, ^[b] and as was done in a Case of a special verdict on an Indictment for murder. ^[c] And, although in some cases in the English Courts, it has been held that the Certiorari would not lie after verdict, and before judgment, it may be remarked, that those were Cases of proceedings in Courts of Record, and the reason for refusing the Writ in those Cases was, that if the Cases were removed, the Court before whom they would be brought, not being acquainted with the facts proved, could not correctly assess the fine, which reason does not exist here, where the fine is assessed by the jury. It would seem, therefore, that in our Courts a Certiorari may be awarded after verdict, and before judgment, but in the Case now before the Court, it does appear from the record, that there has in fact been no verdict of conviction against the Defendants, and, therefore, there can be no doubt whatever of the propriety of awarding a Certiorari in this Case. And the Court is further of opinion, that a Judge of the General Court has the power and authority to do so in vacation, in a Case arising within his jurisdiction. ^[d]

In considering the second question adjourned, " whether the Defendants ought to be tried and convicted without an Indictment being found against them, or without being informed by some regular proceeding, of the cause and nature of the accusation against them," it becomes necessary to enquire what is the regular form and manner of proceeding in such Cases. It will be found, that the 1st and 2d sections of our Statute for punishment of...