Sherman v. Commonwealth
| Decision Date | 04 May 1858 |
| Parties | SHERMAN v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
A prisoner convicted of a felony obtains a writ of error, which is directed to operate as a supersedeas: and he then escapes from jail. The appellate court will discharge so much of the order awarding the writ of error as directed it to operate as a supersedeas to the judgment. And will further direct that the writ of error be dismissed by a certain day, unless it shall be made to appear to the court by that day, that the plaintiff in error is in custody of the proper officer of the law.
John W. Sherman was indicted, tried and convicted in the Circuit court of Culpeper county, for a felony in advising a slave to abscond from his master; and he was sentenced to six years' imprisonment in the penitentiary. From this judgment he obtained a writ of error from this court, which was directed to operate as a supersedeas to the judgment. Whilst the case was pending in this court the prisoner broke jail, and absconded. And then the attorney general moved the court for a rule upon the prisoner to show cause why the court should not set aside the supersedeas, or postpone the hearing of the cause until the prisoner should return to the proper custody; and the same was made.
The motion was argued by The Attorney General, for the commonwealth, and by Wellford, for the prisoner.
JUDGMENTALLEN, P.
The argument as well of the attorney general in support of said rule, as of the counsel who appeared for the plaintiff in error in opposition thereto, having been maturely considered, and it appearing that said plaintiff in error has since the judgment of conviction escaped from custody and is still at large, it is considered by the court that so much of the order awarding the writ of error in this case as directed it to operate as a supersedeas to the judgment of conviction in the petition set forth, be discharged; and it is further ordered, that said writ of error be dismissed on the first day of May next, unless it shall be made to appear to this court, on or before the day last aforesaid, that said plaintiff in error is in custody of the proper officer of the law.
Ordered, that a copy of this order be certified to the Circuit court of Culpeper county.
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Ward v. Charlton
...to a consideration of the proceedings below, the appellate court exercises appellate and not original jurisdiction. In Sherman v. Commonwealth, 14 Grat. 677, 55 Va. 677, it was permitted to beshown that the plaintiff in error, since the judgment of conviction, had escaped from custody and w......