Vance v. Commonwealth

• Decision Date: 01 January 1819
• Citation: 4 Va. 162
• Parties: Abner Vance v. The Commonwealth. Second Case
• Court: Virginia Supreme Court

4 Va. 162

Abner Vance v. The Commonwealth. Second Case

Supreme Court of Virginia

January 1, 1819

OPINION

This was an application to a judgment against the petitioner in the Superior Court of Law for Washington county. He had been indicted, tried, convicted, and sentenced to death by the Superior Court of Russell county, in April, 1818, for the murder of Lewis Horton. That judgment was reversed by the General Court, in June, 1818, and a new trial awarded.

At the September Term, 1818, of the same Court, the prisoner being brought up for trial, moved the Court for a continuance of the Cause till the next Term, upon an affidavit setting forth the materiality of certain witnesses, and their absence subpoenas having been taken out to compel their attendance. The motion was over-ruled by the Court, for several reasons which are set forth; and in assigning those reasons, this remark was made by the Court: " and the Court considering the prisoner as a man of considerable sagacity and artifice, evinced by various circumstances which have occurred at this Term, is of opinion that the motion is made to gain time."

The motion for a continuance being over-ruled, the prisoner was put upon his trial, and the venire summoned to try the Case being all called, and every person attending the Court, qualified according to Law, to serve as a juror in such a Case, as the Sheriff reported, and but part of the jury being elected, every other such person having been either challenged for cause by the prisoner, or by the Attorney for the Commonwealth, or peremptorily by the prisoner, a venire facias was awarded by the Court, directed to the Sheriff of Russell county, commanding him to cause to come before the Court on the then to-morrow, forty-eight persons, qualified as the Law requires, for venire-men, returnable on the said next day. On that day, which was Thursday, the venire facias was returned executed, and all the persons attending the Court, as well as those brought by the venire facias, who were duly qualified, having been called, and a jury not being yet selected, another venire facias for forty-eight others was awarded, returnable on the next day. On that day, the venire facias having been returned, and it appearing to the Court, " that on that fifth day of the Term, at thirty-five minutes past two o'clock, only seven persons have been elected to serve as jurors, none of whom have been sworn, that the prisoner has still thirteen peremptory challenges yet to make, and that in execution of the process of yesterday, only seventeen persons have been found and summoned by the Sheriff, and the Counsel, as well for the prisoner, as the Commonwealth concurring in opinion with the Court, that a jury cannot be made up, and the Cause tried during this term, which will end from necessity at 12 o'clock to-morrow evening," it was ordered that the trial be postponed till the next Term.

Between those Terms the Act of Assembly passed, which authorises the Superior Courts of Law, for certain causes, to change the venue in cases of treason or felony. See the Act 1 Rev. Code of 1819, ch. 169, § 9, p. 601.

On the first day of the Term, April, 1819, the Superior Court of Russell awarded a venire facias for twelve qualified jurors, returnable on the next day. On the second day, the venire summoned by virtue of that writ, as also every other person attending the Court qualified according to Law, (as reported by the Sheriff,) having been called, and but two jurors selected therefrom, upon the motion of the prisoner, by his Counsel, another venire facias was awarded, returnable on the next day, commanding the Sheriff to cause twenty-four freeholders, & c. to come, and the two selected jurors committed to the Sheriff's custody, with the usual injunctions. On the third day, the twenty-four persons summoned by virtue of the last process, and every other person attending the Court, qualified according to Law, (as reported by the Sheriff,) having been called, but one additional juror was elected therefrom. Whereupon, from the number of challenges for cause made by the prisoner in this Case, as well at the present term as at the last, it appears (says the record), to the satisfaction of the Court, that an impartial and legally qualified jury cannot be had for the trial of the prisoner in the county of Russell: it is therefore ordered, that the venue in this Case be changed to the Superior Court of Law for the county of Washington, the most convenient Court in the 13th Circuit, where, in the opinion of this Court, the Commonwealth and the prisoner can have a fair and impartial trial."

Accordingly on the first day of the ensuing Term of the Superior Court of Washington, on the 31st May, 1819, the prisoner was set to the bar, and appearing in an emaciated state, his Counsel moved the Court that a physician be appointed to examine whether the state of the prisoner's health be such as to enable him to undergo the fatigue of a trial: accordingly, three physicians were appointed, who reported, that the prisoner had some fever, but not so much as to injure him more in remaining at the bar, and undergoing the fatigues of his trial, than to be confined in jail. The prisoner thereupon craved oyer of the record of the Examining Court, and the trial postponed till the next day. On the second day of the court, the record of the Examining Court was produced, certified by the Deputy Clerk of Russell County Court. The Counsel for the prisoner thereupon moved the Court to discharge him, the proceedings of the Examining Court not being certified to this Court by the Judge of the Superior Court of Law for the county of Russell, as the said Counsel alleged they ought to have been, in pursuance of the 9th section of the...