Rhodes v. Commonwealth
Decision Date | 13 March 1884 |
Citation | 78 Va. 692 |
Parties | RHODES v. THE COMMONWEALTH. |
Court | Virginia Supreme Court |
Absent, Lewis, P.
Error to judgment of circuit court of Rockingham county, rendered June 23d, 1882, affirming judgment of county court of said county, on an indictment against James M. Rhodes for perjury sentencing him to pay fine of $100 and costs of prosecution and to confinement in jail for twelve months. The alleged purjury was that, whereas said Rhodes swore before justices examining W. R. Miller on charge of larceny of bacon, that said Miller offered to sell him bacon on 15 th November, 1875. Rhodes afterwards, at the trial before the court, swore falsely and corruptly that he did not so state, but stated that said Miller offered to sell him bacon in December, 1875. Indictment failed to state accurately the day of the commission of the offence. To this judgment Rhodes obtained a writ of error and supersedeas.
Opinion states the other facts.
J N. Liggett and H. V. Strayer, for the plaintiff in error.
Attorney-General, for the Commonwealth.
The record shows the case to be as follows: A suit was instituted in the circuit court of Rockingham county on the 1st day of August, 1877, by one Wm. R. Miller against the plaintiff in error and two other persons, to recover damages for an alleged malicious prosecution of the said Miller by the said Rhodes, the defendant, and others, in that the said defendant, on the 18th day of May, 1877, at the county of Page, in the State of Virginia, appeared before one John Welfley, a justice of the peace for the said county of Page, and falsely and maliciously, and without any reasonble or probable cause, charged the said plaintiff with having stolen a lot of bacon, the property of one Paul Long, and caused the plaintiff to be arrested and imprisoned in the county jail of the county of Rockingham, and to be carried in custody to the county of Page, where he was tried and acquitted.
On the 18th day of August, 1877, the said plaintiff in error was indicted in the county court of Rockingham for having committed the crime of perjury in the said trial of the said action in the circuit court mentioned above, in which he was examined as a witness. The indictment alleged that, at the circuit court begun and holden at the courthouse for the county of Rockingham, on the ____ day of February, in the year 1879, in a certain plea of trespass on the case, then tried, James M. Rhodes appeared as a witness for the defendant therein, and was duly sworn as such, and that upon the said trial certain questions became and were material, in substance, whether the said plaintiff therein (Miller) had, in the month of December, 1875, offered to sell to him, the said Rhodes, a certain lot of bacon, and if so, at what time, and also whether he, the said James M. Rhodes, upon the examining trial of Richard and Madison Miller upon the charge of feloniously entering in the night time a certain smoke-house, & c., of one Paul Long, & c., had, upon the 26th of May, 1877, in the county of Page before certain justices of the peace therein named, testified before said justices that said William R. Miller had offered to sell him a certain lot of bacon on the 15th of November, 1875; that the said James M. Rhodes then swore, & c., that the said Miller did, in the month of December, 1875, just before Christmas, offer to sell him the said bacon, and that he had not testified before the said justices that the said Miller had offered to sell him the said bacon on the 15th of November, 1875, and that he had made no such statement at that time; whereas in truth and in fact the said Miller had not offered to sell him any bacon in the said month of December, 1875, at any time in said month; and that the said Rhodes well knew that he had testified before the said justices that the said Miller had offered to sell him the said bacon on the 15th of November, 1875, & c., & c.
The defendant (Rhodes) demurred to this indictment, and filed a plea that the grand jury which preferred the said indictment was illegally empaneled. The court overruled the demurrer, rejected the plea in abatement, and the defendant filed his plea of not guilty. A jury was empaneled and the said defendant was convicted, and the court fixed a fine of one hundred dollars and twelve months' imprisonment as the punishment. Upon appeal to the circuit court this judgment was set aside and annulled, and a new trial granted to the defendant February 22, 1881, which was had in the county court December 21, 1881, when the defendant was again convicted and the same judgment pronounced by the county court as before. Upon a writ of error to the circuit court, this judgment was affirmed on the 23d day of June, 1882; whereupon the said Rhodes applied to this court for a writ of error and supersedeas, which was awarded June 10, 1882.
The assignment of error first to be noticed is the action of the court in overruling the demurrer to the indictment. The ground of the demurrer is, that the indictment set forth the offence as having been committed on the ____ day of February in year 1879. It is insisted that it is essential that the day shall be stated. The Virginia statute, ch. 201, § 5, Code 1873, provides as follows: " In an indictment or accusation of perjury, or subordination of perjury, it shall be sufficient to state the substance of the offence charged against the accused, and in what court or by whom the oath was administered which is charged to have been falsely taken, and to make an averment that such court or person had competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of any record or proceeding at law or equity, or the commission or authority of the court or person before whom the perjury was committed; but nothing herein shall be construed to allow, without the consent of...
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