Waller v. Commonwealth
| Decision Date | 09 February 1888 |
| Citation | 84 Va. 492,5 S.E. 364 |
| Court | Virginia Supreme Court |
| Parties | Waller et al. v. Commonwealth. |
It is sufficient, under Crim. Code Va., which provides that a person shall he discharged from imprisonment if not indicted before the end of the second term after his arrest, that the prisoner has been indicted every term of court, though for a different crime from that for which he was finally tried.
Where a party is in custody it is not necessary that a formal warrant of arrest should be issued before he can be legally examined on the charge contained in the indictment.
Where a judge certified that he was incompetent, by reason of connection, to try a case, but furnished a list of names and issued a venire facias for a jury, which was quashed by the trial judge, who issued a new venire, using the same names, it will be presumed that he used due discretion in selecting the names.
Under Crim. Code Va. p. 340, § 4, which provides that when a sufficient number of jurors are not obtained from the regular panel, the judge shall issue a venire to summon from the by-standers or from a list furnished by the court, it is not necessary to furnish a list with a venire to summon from the by-standers.
A motion for a change of venue will not be granted when it has not been preceded by a motion for a change of venire.
In a trial for felony, the defendant is entitled to an instruction that his identity with that of the party committing the crime must be established beyond a reasonable doubt, and it is improper to give an instruction which may lead the jury to believe that they may be satisfied with a less degree of proof.
On a trial for a felonious assault, alleged to have been committed in the perpetration of a larceny, the only inculpatory facts established were a larceny of money, the flight of the accused, and their pretended ignorance of the crime after being told ofthe facts. The accused showed that the assailed party was a person of very violent temper, and that when angry people had better keep out of his way; that after the assault he went about in a violent passion with a gun and stick; and alleged this as their reason for flight. It was impossible to identify either by sex or person the accused as the parties committing the assault. Held not sufficient to support a conviction.
Appeal from Spottsylvania county court; W. S. Barton, Judge.
J. B. Sener and A. H. Dickenson, for plaintiffs in error. The Attorney General, for the Commonwealth.
The plaintiffs in error, Mary D. Waller and Jennie Boggs, were arrested, examined, and sent on to be tried for a house-breaking with intent to kill and rob, charged to have been committed by them on the 11th June, 1886. On the the 5th day of July, 1886, they were indicted for burglary and grand larceny, and they were held under these indictments until the 7th of December in the same year, when the third grand jury which had met since their arrest indicted them for a felonious assault. Upon this last-mentioned indictment they were tried, convicted, and sentenced, whereupon they applied to the judge of the circuit court of Spottsylvania for a writ of error, which, being refused, they applied for and obtained a writ of error from one of the judges of this court. They now assign various errors in the proceedings aud judgment of the county court, the most of which are merely technical and without merit. The most important of these, however, will be briefly noticed in the order in which they are assigned.
Their first assignment of error is that the court erred in refusing to quash this indictment and to discharge the prisoners from custody, because it was not found until the third term at which a grand jury was impaneled after their arrest. This contention, however, is founded upon a plain misconception of the meaning of the statute. It was never contemplated by the framers of the act that persons in jail, charged with crime, should be discharged from inprisoninent if the indictment upon which they are tried was not found before the end of the second term, but only that they should be discharged if no indictment should be preferred against them before the expiration of such term. This is apparent from a mere reading of the statute itself. It says: "A person in jail on a criminal charge shall be dismissed from imprisonment if a presentment, indictment, or information be not found or filed against him before the end of the second term of the court at which he is held to answer, unless, " etc. The simple requirement of the statute is that some indictment shall be found before the end of the second term, or else the accused shall be discharged from imprisonment, although liable to be again arrested and tried upon any indictment that may be subsequently found against them. Manifestly the present case does not fall within the statute, for here the accused were indicted by the first grand jury that met after their arrest, and the commonwealth has only done what she had the clear right to do, exercised her election as to the indictment upon which the prisoners should be tried.
The next assignment of error is that they were tried upon the indictment charging them with a felonious assault, without being first accorded the "examination allowed by section 15 of the Criminal Code, (Acts 1877-78, p. 336, § 15.) This objection assumes that it was a necessary prerequisite to the validity of the examination which was had, that there should have been a warrant of arrest actually issued by the presiding judge. Such, however, is not the case. A formal warrant is only required by the statute where the accused is at large. Here the accused were in confinement and in the power of the court, and the order of the court commanding the sheriff to take the prisoners before a justice of the peace, there to be examined on the charge contained in the indictment, was all that could possibly be required....
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...that a warrant of arrest be issued where the grand jury first returns an indictment against the accused. Waller v. Commonwealth, 84 Va. 492, 494-495, 5 S.E. 364, 365-366 (1888). Petitioner also claims that count two of the indictment was fatally defective because it did not contain a list o......
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...v. State, 68 Miss. 609; (S.C., 10 So. 47); Lee v. State, 45 Miss. 114; Dillard v. State, 58 Miss. 368; Joyce v. Com., 78 Va. 287; Waller v. Com., 84 Va. 492; Frank v. 21 Wis. 168; State v. Reno, 41 Kan. 674; Bang v. State, 60 Miss. 571; Parker v. State, 55 Miss. 414; Kendrick v. State, 55 M......
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