State v. Sites
| Decision Date | 01 July 1882 |
| Citation | 20 W.Va. 13 |
| Parties | STATE OF WEST VIRGINIA v. SITES. |
| Court | West Virginia Supreme Court |
Submitted Jun. 22, 1882.
1. A prisoner convicted of a felony obtains a writ of error; and he afterwards escapes from custody and is still at large. In such case the appellate Court will order, that the writ of error be dismissed by a certain day, unless it shall be made to appear to the Court before that day, that the plaintiff in error is in custody of the proper officer of the law. (p 16.)
2. And the appellate Court may make such order upon motion based on affidavits without previous notice of the grounds of said motion to the plaintiff in error or to his counsel. (p. 16.)
Motion to dismiss a writ of error to a judgment of a circuit court of the county of Nicholas, rendered on the 15th day of August, 1881, on an indictment for burglary in a case in said court then pending, wherein the State of West Virginia was plaintiff and Samuel Sites was defendant, allowed upon the petition of said Sites.
Hon. F A. Guthrie, judge of the seventh judicial circuit rendered the judgment complained of.
HAYMOND JUDGE, furnishes the following statement of the case:
The indictment which appears in the record in this case, contains four counts; the first count charges, that the said Samuel Sites on the 9th day of May, 1881, in the said county of Nicholas, a certain mill-house of Militus E. Wood, not adjoining to or occupied with the dwelling-house of Militus E. Wood, or of any other person there situate, in the night time feloniously did enter without breaking with intent the goods and chattels of Marion Rowe, in the said mill-house then and there being, feloniously to steal, take and carry away, and four and three-fourths bushels of corn of the value of five dollars, of the goods, chattels and property of the said Marion Rowe in the said mill-house, then and there being found, then and there feloniously did steal, take and carry away, & c., & c. The second count is substantially the same as the first, except that it omits the words " or any other person," contained in the first count, and except that it alleges, that said Sites, feloniously did break and enter, & c., and that it does not allege, to whom the mill-house belonged. The third count is in substance the same as the second, except that it alleges the property taken to be the property of Militus E. Wood. The fourth count charges that Samuel Sites, on the 9th day of May, 1881, in the said county a certain mill-house of one Lewis N Alderson, not adjoining to or occupied with the dwelling-house of said Louis N. Alderson there situate, in the night-time, feloniously did break and enter with intent the goods and chattels of one Marion Rowe in the said mill-house then and their being, feloniously to steal, take and carry away, and four and three-fourths bushels of corn of the value of five dollars, of the goods and chattels of the said Marion Rowe in the said mill-house, then and there being found, then and there feloniously did steal, take and carry away.
It appears, that at a circuit court of said county of Nicholas, held on the 12th day of August, 1881, the defendant, Sites, in his own proper person moved said court to quash the said indictment against him and each count therein, which motion the court overruled; and thereupon the defendant, Sites, pleaded not guilty to said indictment, and issue was thereon joined, and thereupon a jury of twelve men, who were elected, tried and sworn according to law, after hearing the evidence and argument of counsel by their verdict found the said defendant, Sites, guilty in manner and form, as in the first count of the indictment is alleged against him, and fixed his term of confinement in the penitentiary at two years, and found him not guilty upon the second, third and fourth counts in the indictment against him. Whereupon the defendant by his attorney moved the court to set aside the verdict of the jury, which motion the court overruled; and the defendant excepted, and his exceptions were signed, & c.
It appears, that afterwards, on the 15th day of August, 1881 the said court rendered judgment of sentence and conviction against the said defendant, Sites, upon said verdict; and in said judgment the said court directed, " that the said Samuel Sites be imprisoned in the public jail and penitentiary-house of this State for the term of two years, the period by the jurors in their verdict ascertained, and that he be kept in solitary confinement in the jail and penitentiary-house," & c., & c. The court however on motion of the defendant, Sites, suspended execution of the judgment for sixty days, to enable him to apply to...
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