Sturgill v. Commonwealth
| Decision Date | 26 February 1940 |
| Citation | 7 S.E.2d 141 |
| Parties | STURGILL et al. v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Wise County; George Morton, Judge.
Proceeding between J. M. Sturgill and Jeff Flanary and the Commonwealth, wherein, after J. M. Sturgill and Jeff Flanary were indicted for alleged murder, they filed a plea or motion that they be discharged from further prosecution. To review an order overruling the plea or motion, J. M. Sturgill and Jeff Flanary bring error.
Writ of error dismissed.
Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.
O. M. Vicars, of Wise, R. R. Parker, of Appalachia, and S. H. Bond, of Gate City, for plaintiffs in error.
Abram P. Staples, Atty. Gen., for the Commonwealth.
We are met at the threshold of the enquiry with a motion by the Attorney General to dismiss the writ of error awarded Sturgill and Flanary, as improvidently awarded because it is not directed to a final judgment, as nd final judgment has ever been rendered by the circuit court against the defendants.
At the March, 1937, term of the circuit court of Wise county the defendants were jointly indicted with Wilmer Whited for the murder of one Pete Hamilton. At the first calling of the case it was continued on the motion of the Commonwealth; on August 6, 1937, the case was continued on behalf of the Commonwealth; on November 5, 1937, it was continued on motion of the defendants; on April 9, 1938, Whited elected to be tried separately. There was a mistrial of the case against Whited, and the case against Sturgill and Flanary was continued generally. On August 10, 1938, the cases were continued for the defendants, and on February 2, 1939, the cases were continued generally. At the April, 1939, term of the court, Sturgill and Flanary appeared in person and by counsel filed their joint plea, which is as follows:
The plea is based upon the provisions of section 4926 of the Code, as amended by Acts 1928, c. 16, which reads:
"Every person against whom an indictment is found charging a felony and held in any court for trial, whether he be in custody or not, shall be forever discharged from prosecution for the offense, if there be three regular terms of the circuit or four of the corporation or hustings court in which the case is pending after he is so held without a trial, unless the failure to try him was caused by his insanity, or by reason of his confinement in a hospital for the insane for care and observation, or by the witnesses for the Commonwealth being enticed or kept away or prevented from attending by sickness or inevitable accident, or by continuance granted on the motion of the accused, or by reason of his escaping from jail or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict, or where there be no court held at the regular term, or where there is court held and for any reason it would be injudicious, in the opinion of the court, to have jurors and witnesses summoned for that term, which reason shall be specially spread upon the records of the court; but the time during the pendancy of any appeal in any appellate court shall not be included as applying to the provisions of this section."
Issue was joined on the plea, the determination thereof submitted to the court upon the record evidence introduced by the defendants, and record and parol evidence introduced by the Commonwealth. On April 21, 1939, the trial court entered an order overruling the motion of defendants that they be discharged from further prosecution and struck the plea of defendants from the record. To...
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Flanary v. Commonwealth
...To this action a writ of error was awarded but later dismissed on the ground that it was prematurely granted. See Sturgill v. Commonwealth, 175 Va. 584, 585, 7 S.E.2d 141. On May 22, 1944, the case against Flanary was again called for trial, and he again moved to dismiss the prosecution aga......
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Gilstrap v. Godwin, 74-2166
...Virginia Supreme Court will not review an interlocutory order denying a pretrial motion to dismiss an indictment. Sturgill v. Commonwealth,175 Va. 584, 7 S.E.2d 141 (1940). As Woodard v. Commonwealth, 214 Va. 495, 201 S.E.2d 785 (1974), illustrates, post-trial review of a speedy trial issue......
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West v. Com., 940956
...160 (1994). We consistently have held that criminal appeals to this Court lie only to final judgments. See, e.g., Sturgill v. Commonwealth, 175 Va. 584, 7 S.E.2d 141 (1940); Saunders v. Commonwealth, 79 Va. 522 (1884). In Saunders, we dismissed an appeal of a denial of a plea of former jeop......
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Randolph v. Com., Record No. 0275-04-1.
...January 8, 2004 order, from which Randolph appeals, "is in no sense the pronouncement of a final judgment." Sturgill v. Commonwealth, 175 Va. 584, 588, 7 S.E.2d 141, 142 (1940). The ultimate adjudication of Randolph's guilt remains in the Moreover, Randolph's reliance on Fuller is misplaced......