Sutton v. Commonwealth
| Citation | 85 Va. 128,7 S.E. 323 |
| Parties | Sutton v. Commonwealth. |
| Decision Date | 19 July 1888 |
| Court | Supreme Court of Virginia |
Court.
Under Acts Va. 1877-78, c. 17, § 1, providing that a person indicted in the county court for a capital offense may, "upon his arraignment, " demand to be tried in the circuit court, in which case the record shall be certified thereto, it is not ground for arrest of judgment that, upon arraignment, the prisoner pleaded not guilty, and then made his election to be tried in the circuit court.
Nor is it ground for arrest that defendant after such case was removed into the circuit court was not again arraigned and did not again plead, although said section further provides that, in case of such removal, the prisoner, if in custody, shall, unless good cause be shown for continuance, be arraigned and tried at the next term of said court; defendant having made no objection to being tried without further plea.
8. Same—Trial—Failure of Accused to Testify—Comments.
It is not a violation of Code Va. 1887, c. 190, § 3897, prohibiting comment before the court or jury upon the prisoner's failure to testify, for the prosecuting attorney to remark that the prisoner had not accounted for his whereabouts at the time of the homicide in question, nor for his flight from the state.
4. Same—Evidence—Declarations of Accused.
Evidence of a conversation by accused relevant to the issue is admissible, although the witness did not hear the whole of it.
5. Homicide—Circumstantial Evidence—Instructions.
An instruction in a murder case that, in cases of circumstantial evidence, the time, place, manner, opportunity, motive, and conduct must concur in pointing to the prisoner as the guilty agent, is properly modified to charge that all the enumerated circumstances, or such of them as may be proved, with other facts, if any, must so concur.
6. Same—Murder—Evidence—Sufficiency.
Defendant and an associate were recognized, although disguised, lurking in the vicinity, and going in the direction of the home of deceased, the scene of the homi-cide, avoiding the road where practicable, and inquiring for deceased; defendant being armed with a rifle. They were again recognized by deceased's wife and mother hiding in the bushes near the house, and were further identified by peculiar tracks and a heel-plate on defendant's boot. A few moments after being so seen deceased was shot by two rifles from the bushes. Defendant fled to Illinois, and was there captured, and his associate's whereabouts was unknown at the time of the trial. There was evidence tending to impeach and contradict the state's witnesses, and to show defendant's good character. Held, that the evidence justified a conviction for murder in the first degree.
Error to circuit court, "Wythe county.
Indictment for murder against "Wayman Sutton and Morgan Pendleton. Sutton was tried, found guilty of murder in the first degree, and sentenced to death. Prom that judgment he brings error. Code Va. 1887, c. 190, § 3897, gives the defendant in a criminal case the right to testify in his own behalf; but provides that his failure so to do shall create no presumption against him, and shall not be the subject of comment by the prosecuting attorney before the court or jury.
Blair, Fulton & McTeer, for plaintiff in error. JR. A. Ayers, Atty. Gen., and J. L. Gleaves, for the Commonwealth.
This is a writ of error to a judgment of the circuit court of Wythe county, rendered at the March term, 1888. The case is as follows: The plaintiff in error, Wayman Sutton, (together with one Morgan Pendleton,) was indicted in the county court of Wythe county at the July term, 1887, for the killing of one Peter Harvell on the 19th of May, 1887. At the November term following, the said Sutton having been arrested, and being in custody, upon the calling of his case moved to quash the indictment, which motion was overruled; and, being arraigned, upon his arraignment pleaded not guilty, and elected to be tried in the circuit court of said county; whereupon he was remanded to the said circuitcourt for trial. At the March term, 1888, he was brought before the said circuit court upon the certified transcript of the record in the county court, where he was tried and convicted of murder in the first degree, and sentenced to be hanged. During the progress of the trial numerous exceptions were taken to the rulings of the court against him, and at the conclusion of the trial the plaintiff in error moved in arrest of judgment, because he had not been tried by due process of law, and because of the want of jurisdiction in the trial court; and moved to set aside the verdict because of the comments of the commonwealth's attorney on the prisoner's silence, and because the verdict was contrary to the evidence, —all of which motions the court overruled, and rendered judgment, and passed sentence in accordance with the verdict. Whereupon the said plaintiff in error applied for and obtained a writ of error to this court.
The first assignment of error here is to the refusal of the circuit court to arrest the judgment, upon the ground that the said court was without jurisdiction to try the case, because the case could only be brought to the circuit court when the accused, upon his arraignment in the county court, had elected to be tried in the circuit court; and whereas, the said accused had elected to be tried in the said circuit court, he had so elected at the wrong time; because the statute provided that he should so elect upon his arraignment in the said county court, whereas he had elected to be tried in the circuit court after his arraignment. That, when arraigned in the county court, he had pleaded not guilty, and had then elected to be tried in the circuit court. And also it was moved in arrest of judgment that the circuit court should not pronounce judgment because the accused had not been arraigned, and had not pleaded in that court; which motion the circuit court likewise overruled, and the accused excepted; which ruling is also assigned as error. Our law provides (Acts 1877-78, c. 17, § 1, p. 339) that a person, to be tried for any felony for which he may be punished with death, may, upon his arraignment in thecounty court, demand to be tried in the circuit court having jurisdiction over the county for which said county court is held; and that in a circuit court, when the indictment and other papers have been certified and transmitted to the clerk thereof as stated, the accused, if'in custody, shall, unless good cause be shown for a continuance, be arraigned and tried at the same term. The obvious intention of the legislature, by the provision drawn in question here, was to provide the accused an election as between the two courts. If he made none, then the law provides for his trial in the county court. If he exercised his election, then he could remove his case to the higher court as a matter of right. The time designated for the exercise of this election is upon his arraignment; that is, when he is called to the bar of the court to answer the accusation contained in the indictment. The first step in the proceeding consists in calling him to the bar by his name, and commanding him to stand up. The second step is the reading the indictment to hi in. The third step is to ask him, "How say you; are you guilty, or not guilty?" Technically, the arraignment is now completed, and he must answer. lie may plead as he is advised; he may demur or move to quash; he may plead to the jurisdiction or otherwise; or he may plead not guilty. If he pleads not guilty, the issue is made up, and the trial proceeds. But in this case he then elected to be tried in the circuit court, and the issue thus made up was certified to the circuit court, and was there tried without objection from him in any form until after verdict. The language of the law is, "upon his arraignment." "Upon" means, "at the time of;" but it is interchangeable, according to Webster, with "on, " and one of the meanings of the latter is "at or near, "—as, "the fleet is on the coast of America;" "the island is on the coast of England." Neither the fleet nor the island can be actually on the coast, for the island would then cease to be an island, and the fleet would cease to be a fleet. And again: "In consequence of or following, as, on the ratification of the treaty tho armies were disbanded;" and another meaning is at or in the time of, as "on the Sabbath we abstain from labor." It would be sticking to the letter and discarding the sense to so construe the law as it is written, as to hold that "upon" means "at the time of" and not after; for although the election had been made, and no plea filed in the county court, the election must have been after the arraignment...
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