Smith v. Commonwealth
Decision Date | 21 March 1889 |
Citation | 85 Va. 924,9 S.E. 148 |
Parties | Smith v. Commonwealth. |
Court | Virginia Supreme Court |
Criminal Law — Plea—Rape—Witness—Indictment.
1. A plea that defendant has been held for trial for more than four terms after the indictment was found is unavailing where he was convicted during that time, and the conviction was reversed, as he was held till reversal for punishment, and not for trial.
2. On a criminal trial, a plea which presents in different words the same issue presented in another plea is properly rejected.
3. A conviction for rape will not be set aside on the ground that the prosecutrix, who was 12 years of age, could not understand the nature of an oath, where she was very critically examined by the court, and the jury were instructed that they were judges of her credibility.
4. An indictment for rape in the words of Code Va. 1887, § 8680, defining the offense, is sufficient.
H'ardaway & Hairston, for plaintiff in error. R. A. Ayers, Atty Gen., for the Commonwealth.
This is a writ of error to a judgment of the circuit court of Henry county, rendered at the October term, 1888, of the said court, in a criminal case therein pending on an indictment for rape against William Smith, the plaintiff in error, in which prosecution the said William Smith was found guilty by the verdict of the jury, and sentenced by the court to a term of 10 years in the penitentiary.
The first error assigned is as to the action of the court in overruling the prisoner's demurrer to the indictment. This assignment of error is not well taken. The indictment is in the words of the statute, (section 3680, Code 1887,) and is in exact accordance with the law.
The second assignment of error is to the action of the court in sustaining the replication of the commonwealth to the prisoner's plea averring that he had been held for trial more than four terms after the indictment had been found against, him in the county court. The record which the prisoner avouched shows that the fact averred in the plea does not obtain in fact. It shows that the prisoner was indicted at the March term, 1886, of the county court of Henry county; that he was tried and convicted at the May term, 1886, and that upon the prisoner's own motion the judgment was suspended for 60 days, to enable him to apply for a writ of error, which he obtained from the circuit court of Henry county; that on the 23d of October, 1886, the judgment of the county court was reversed and annulled, and a new trial awarded to the prisoner by the circuit court of Henry county, to be had in the said county court. The prisoner, after his conviction in the county court, at its May term, 1886, was not held for trial, but was held for punishment until the judgment of the county court was reversed and annulled by the circuit court, whose order, made October 23, 1886, remanded the prisoner to the county court for a new trial, where he was held for trial during the months of November and December, 1886, and January, 1887. At the February term, 1887, the prisoner was granted a continuance, upon his own motion, until the March term, 1887, when he was tried and convicted, and sentenced to the penitentiary for 15 years. From this judgment the prisoner obtained a writ of error and supersedeas from the circuit court of Henry county, and upon the 16th day of April, 1887, the said judgment of the...
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