Nicholas v. Commonwealth.1

• Decision Date: 21 March 1895
• Citation: 91 Va. 741,21 S.E. 364
• Parties: NICHOLAS . v. COMMONWEALTH.1
• Court: Virginia Supreme Court

21 S.E. 364

91 Va. 741

NICHOLAS .

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

March 21, 1895.

Prosecution for Murder—Evidence—New Trial—Terms of Court—Jurisdiction—Presumptions on Appeal.

1. The fact that one term of court passed without an order in a criminal case does not show a denial of the right of accused to a speedy trial.

2. Though Code, § 3045, provides for monthly terms of the county court, as sections 3049 and 3122 contemplate the omission of a regular term, the supreme court will not presume that a term was held in a certain month, so as to exclude the record, as being incomplete, it being silent as to such term.

3. The circuit court, after acquiring jurisdiction to try defendant, by his election to be tried thereby, cannot remand the case to the county court, even on the prisoner's motion.

4. On a prosecution of one for drowning persons by boring holes in a boat, evidence that defendant possessed an auger of the size of the holes in the boat is admissible.

5. The state may show that a prisoner, at times and places other than those charged in the indictment, attempted to kill deceased.

6. The state may show that defendant stated to relatives of deceased that the latter had heart disease, and was liable to die at any time.

7. Death by criminal violence having been proven by direct evidence, or proof of death being so strong as to produce moral certainty, the criminal agency may be established by circumstantial evidence.

8. When affidavits are filed to secure a new trial on account of after-discovered evidence, the state may file counter affidavits in opposition.

9. To secure a new trial for after-discovered evidence, the evidence must be discovered after the trial, and be such that it could not have been discovered before by reasonable diligence.

10. The after-discovered evidence must be material, and such as ought to produce the opposite results, on the merits.

11. Defendant, who lived with deceased and his wife, suggested to deceased and another, Who were unable to swim, a trip across a river, to take a bee tree. They crossed the river to the bee tree, but did not take it, and on their return, while the other two were sitting with their backs to defendant, the boat filled with water, and they were drowned. The boat, on being afterwards found, contained three holes, freshly bored, under defendant's seat, which answered in size to an auger owned by defendant. Defendant consented to assist in the investigation of the drowning only when threatened with arrest, and his conduct after the drowning was very suspicious. Some time before the drowning he had purchased strychnine, and deceased had exhibited signs of being poisoned after drinking with him, and defendant had remarked several times that deceased had heart failure, and would die suddenly. Defendant was criminally intimate with the wife of deceased both before and after the latter's death. Held, that a verdict of murder in the first degree was justified.

Error to circuit court, Henrico county.

Philip N. Nicholas was convicted of murder, and brings error. Affirmed.

D. C. Richardson and Smith & Moncure, for plaintiff in error.

R. Taylor Scott, Atty. Gen., C. R. Sands, and Geo. D. Carter, for the Commonwealth.

HARRISON, J. Philip N. Nicholas was indicted in the county court of Henrico on the 24th day of December, 1892, charged with the murder of James Mills and William Judson Wilkerson. He elected to be tried in the circuit court of Henrico county, and, after a protracted trial in that court, was, on the 11th day of October, 1893, found guilty of murder in the first degree, and on the 21st day of December, 1893, was sentenced to be hung. From this judgment of the circuit court he obtained a writ of error to this court. The numerous exceptions taken to the ruling of the circuit court are so imperfectly arranged and numbered in the record that it will be necessary to disregard this lack of order, in considering the various questions now to be disposed of.

1. There is an exception to the action of the circuit court in refusing to reject the record of the county court, upon the ground that said record was incomplete. It appears that while the case was pending in the county court, and before the prisoner had elected to be tried in the circuit court, it was continued, on motion of the commonwealth, until the next term of the county court, and fixed for trial on the 20th day of February, 1893. The record is silent as to what, if anything, was done at the February term, 1893. So far as appears, the next action in the case was at the March term, 1893, when the prisoner was arraigned, and elected to be tried in the circuit court. It is insisted that the prisoner was entitled to a speedy trial, and that the record should show on whose motion the case was continued at the February term, 1893, —whether the continuance was for good cause, or upon the motion of the commonwealth, —so that the appellate court could ascertain whether the prisoner had been denied his right to a speedy trial. In the first place, this allegation is wholly immaterial, under the circumstances disclosed in this record. The statute guaranties to the accused a speedy trial by providing for their discharge if four terms of a county court elapse without a trial, unless the record shows the case to have been continued for some one of the enumerated reasons therein set forth, but the fact that one term has passed without an order in the case is not a denial of the right of the accused to a speedy trial. Section 4047 of the Code, as amended by Acts 1893-94, p. 464. This exception may be disposed of upon this further ground: There is no mention in the record that any county court was held for Henrico county in February, 1893. Section 3045 of the Code provides that there shall be monthly terms of the county court; but sections 3049 and 3122 of the Code contemplate that a regular term of a court may not be held at all, and section 3123 provides that when the court fails to sit on any day appointed for it, or to which it may have adjourned, there shall be no discontinuance, and that all matters ready for the court to act upon, if it had been held, on any such day, shall be in the same condition, andhave the same effect, as if continued to the next court in course. It not appearing that a court was held for the county of Henrico in February, 1893, it may be that for good and sufficient reasons, contemplated by law, no February term of said court was held, and under section 3123, quoted above, the prisoner's case stood continued until the next regular term, which was in March. The prisoner suffered no loss of right to a speedy trial by reason of the court not holding a February term. There was therefore no error in the refusal of the circuit court to reject the record on the ground that it was incomplete, in being silent as to the February term, 1893.

2. Several bills of exception raise in different forms the same question, —as to the lawfulness of the county court's action at its June term, 1893. The prisoner having elected to be tried in the circuit court, his case was called for hearing at the May term, 1893, when he moved the court to remand his case to the county court because the transcript of the record sent to the circuit court did not contain the writ of venire facias which issued for the grand jurors who found the indictment, nor the sheriff's return thereon, the prisoner desiring to inspect said papers and to move to quash the same. This motion the circuit court sustained, and ordered that the case be remanded to the county court, and that the prisoner be remanded to jail, and taken before the county court. At the June term, 1893, the prisoner was taken before the county court, and on motion of the commonwealth's attorney an order was entered directing the venire facias summoning the grand jury, and the sheriff's return thereon, to be copied, and certified to the circuit court, and remanding the prisoner back to that court. It is this action of the county court that is complained of in the exceptions under consideration. When the case was called for trial, on October 5, 1893, the prisoner moved the court to quash this record of the county court, contending that after he had elected to be tried in the circuit court the county court could make no order in the case; that, if it could, it might altogether change the record, and deprive the prisoner of his rights. The court properly overruled the motion. The circuit court, having acquired jurisdiction to try the prisoner, had no power to remand the case to the county court for any purpose, —not even on the motion of the prisoner himself, as was the case here; and Its order remanding said prisoner was a nullity, and the prisoner was never, after his election to be tried in the circuit court, in point of law, out of that court. If the county court had failed to certify any part of the record, the duty of the circuit court was to have the record certified up as the law directed. Howell v. Com., 86 Va. 817, 11 S. E. 238.

3. There is an exception to the action of the circuit court in overruling petitioner's motion to quash the venire facias Issued for summoning the grand jury by which the indictment against him was found, and the return thereon. No ground has been assigned in the petition or at bar in support of this motion, and, none appearing to the court, it was properly overruled.

4. An exception is taken to the action of the court in refusing to quash the indictment against the prisoner, and overruling petitioner's demurrer to same. This exception is without merit. No sufficient reason being suggested why the motion should prevail, and the court perceiving no error in the form of the indictment, the motion was properly overruled.

5. Exception is taken to the action of the circuit court in refusing to quash the venire facias under which the jury was summoned for the trial of the prisoner, and the return thereon. It is insisted that the...