Volume 132 — Virginia Reports

<p>Appeal from an order of the State Corporation Commission.</p> <p>The opinion states the case.</p>

<p>1. Animals—Dogs—Property—Action for Destruction or Injury.— At common law the possession of a dog vests the owner with such a base or qualified property as that he can maintain a civil action for the unlawful conversion, destruction, or injury thereof. By statute in Virginia (Code 1919, sec. 2324) dogs which have been assessed with a license tax which is not delinquent, are personal property, and may be the subject of larceny as well as of malicious or unlawful trespass.</p> <p>2. Animals—Dogs—Action for Killing—Justification—Burden of Proof.—Where the proof of the killing of a dog is clear, the burden is then upon the defendant who justifies his action to show the necessity therefor.</p> <p>3. Animals—Justification for Killing of Animals—Defense of Other Animals.—The owner of domestic animals or fowls has the right to defend them from injury or destruction through the attacks of other animals, but the extent of such right of defense necessarily depends on the circumstances and necessities of the particular case—that is, whether or not the right is reasonably or properly exercised, so as to make it lawful and justifiable.</p> <p>4. Animals—Dogs—Killing Dogs—Justification Question for Jury.— As a general proposition, in an action for damages for killing a dog, it may be said that where the defense of the right to kill the dog is made, the question is one of fact for the jury, to be decided after due consideration of all the peculiar circumstances relating thereto.</p> <p>5. Animals—Dogs—Killing Dogs—Justification—Case at Bar.—Defendant, in an action for wrongfully killing the dogs of another, testified that the dogs had been disturbing his turkeys during the whole summer, and that on the morning he shot the dogs they had chased the turkeys over on a neighbor’s premises, where he followed them and found them after his turkeys, but when he got close enough to shoot they had stopped chasing the turkeys.</p> <p>Held: That the question for the jury was whether or not a man of ordinary prudence would be reasonably led to believe that it was necessary for him to kill the dogs, and that a judgment for defendant would not be set aside upon the ground that the evidence was insufficient.</p> <p>6. Dogs—Killing Dogs—Dogs Chasing Sheep, or Injuring or Killing Domestic Animals or Fowls—Duty of Game Warden.—Acts 1918, p. 622, section 4, providing that it shall, be the duty of the game warden to kill any dog found injuring or killing any domestic animals or fowls, relates to the duties and powers of the game warden, and does not refer to and is not intended to deny or in any way affect the qualified property which the owner has in his dog, or to extend the right of a defendant to kill dogs in defense of himself or his property.</p> <p>V. Dogs—Dogs Chasing or Injuring Domestic Animals or Fowls— Instruction that Dogs Become Outlawed in Action Not Maintainable for Their Killing.—In an action for killing plaintiff’s dogs, the jury were instructed that if they believed at the time defendant killed plaintiff’s dogs the dogs were injuring or killing domestic, fowls belonging to defendant, under the statute law of Virginia, the life of the dogs became forfeited, and it became the duty of the warden to kill the dogs, and therefore the dogs became outlawed, and plaintiff could not have any property right in the dogs, and the .jury must find for the defendant.</p> <p>Held: Reversible error.</p>

<p>Appeal from a decree of the Circuit Court of Orange county. Decree for defendants. Complainants appeal.</p> <p>The opinion states the case.</p>

<p>1. Carriers—Street Railways—Injury to Passenger Upon or After Alighting—Burden of Proof.—In an action by a street car passenger for injuries received while alighting, or immediately after alighting from the car, the burden of proof was on the passenger to show, either that she was not given time to alight, or that, after alighting, she was not given time to clear the car and reach a place of safety before the car started again.</p> <p>2. Expert and Opinion Evidence—Res Gestae—Whether Statement a Mere Expression of Opinion.—In an action by a street car passenger for injuries received while alighting, or immediately after alighting from the car, the court refused to allow plaintiff to testify that immediately after the accident the motorman came up and said it was not his- fault, to which a third party said, “It was your fault; you hardly gave me time to get out of the way, and I was in front of her.”</p> <p>Held: That while it might be objected that the expression “It was your fault” was a mere expression of opinion, the statement, “You hardly gave me time to get out of the way, and I was in front of her,” is a statement of fact which the declarant as a witness might properly have been allowed to make.</p> <p>3. Res 'Gestae—“Spontaneous Declaration”—General Rule.—The practical rule as to the admissibility of statements as a part of the res gestae, or, in other words, whether a statement is admissible as a “spontaneous declaration” under an exception to the hearsay rule, seems to be that the declaration must have accompanied the main fact, or must have followed under its immediate propulsion, must bear no evidence of reflection or deliberation or calculation, and must have been a spontaneous, undesigned, and illustrative incident or part of the litigated act.</p> <p>4. Res Gestae—General Rule—■Incapable of Express Definition— Discretion of Lower Cowrt.—The res gestae rule is incapable of any precise defirátion. Its application to a particular case depends upon the circumstances of that case, and necessarily rests at last in every instance upon the discretion and judgment of the trial court. Such discretion and judgment, of course, may be the subject of review, but in doubtful cases there ought to be and is a presumption in favor of the action of the court below.</p> <p>5. Res Gestae—Appeal and Error—Discretion of Lower Court.— Where the question of the admissibility of a declaration under the res gestae rule is not free from doubt, but it is not manifest that the trial court’s decision was wrong, the action of the trial court will be affirmed.</p> <p>6. Res Gestae—Appeal and Error—Exclusion of Testimony Held Harmless.—In an action for injuries received while alighting from a car, if plaintiff had been permitted to testify that a third person made a statement to the effect that the motorman started his car before she had time to get clear, she would not have bettered her position, because of the conflict between this third party’s testimony and her own at the trial. The exclusion of her testimony as to the third party’s statement, therefore, if error, was harmless.</p>

Decree for defendants. Complainant appeals. The material facts in this case are that one Portlock executed a certain deed of trust, conveying certain real estate to secure the payment of a debt of $3,000.00 of himself to appellant, evidenced by three notes of the grantor, payable to the order of the appellant, one note for $300.00, payable December 3, 1913, another for $300.00, payable December 3, 1914, and the remaining note for $2,400.00, payable December 3,1915; all of…

<p>1. Bankruptcy and Insolvency—State Statutes Not in Conflict with Bankruptcy haw.—In the administration of the bankruptcy law State statutes enacted for the protection of creditors are given full force and effect so far as they are not in conflict with the bankruptcy act.</p> <p>2. Bankruptcy and Insolvency—Preferences—Conflict of haws.— A preference or transfer may be unlawful or fraudulent under the statutes of one State which under identical circumstances would be held valid in another State.</p> <p>3. Bankruptcy and Insolvency—Title of Trustee—To What Property Trustee Entitled—Bight to Set Aside Conveyances by Bankrupt.—A trustee in bankruptcy under section 47a of the bankruptcy act, as amended in .1910 (U. S. Comp. St., sec. 9631), is vested with all the rights of a judgment creditor holding an execution returned unsatisfied. This section, however, does not define and limit all of the trustee’s rights. He takes not only all of the rights of the bankrupt in his property, having power to set aside certain transactions, but he also succeeds to all of the rights of creditors of the bankrupt, including the right to set aside conveyances which bind the bankrupt, and takes title to certain property with which the bankrupt has voluntarily parted and could not reclaim.</p> <p>•4- Bankruptcy and Insolvency—Agency—Virginia Traders’ Act—. Goods on Consignment.—The Virginia traders’ act (Code 1919, sec. 5224) provides that, if any person transact business as a trader in his own name, and fail to disclose the name- of his principal or partner by a sign in letters easy to be read, placed ' i conspicuously at the house wherein such business is transacted, ' and also by a notice published, then all the property, stock, and choses in action acquired or used in such business shall, as to the creditors of such person, be liable for his debts.</p> <p>. Held: That a corporation engaged, as a trader in buying and selling motor vehicles and their accessories in its corporate • name was a trader within the act, and a truck consigned to it for sale was subject to its debts.</p> <p>5. Bankruptcy and Insolvency—Preferences—General Rule.—The rule is that a preference is unlawful under the bankruptcy act if made within the prescribed four months, if it be alleged and proved that at the time of the transfer the party making it was insolvent, that the property transferred was such that his creditors had the right to have it subjected to their claims, that he intended to create a preference, and that the transferee had • reasonable cause to believe, that the transferor had such an intention.</p> <p>6. Bankruptcy and Insolvency—Preferences—Proceeds of Consignment Sale—Case at Bar.—In the instant case, the bankrupt, a corporation engaged in buying and selling motor vehicles and accessories in its corporate name, received a truck on an unrecorded consignment for sale contract. A few days after the receipt of the truck the secretary of the company sold it and with the proceeds of the sale paid defendant bank $2,250 in settlement of five notes of the corporation, upon which the secretary was an indorser, enabling the bank to obtain a greater percentage of its debt than any other creditor of that class. The payment was within four months of the corporation’s bankruptcy.</p> <p>Held.: That the truck being liable to the corporation’s creditors under the Virginia traders’ act (Code 1919, see. 5224), this payment constituted a preference which the trustee could recover from defendant bank.</p>

Decree for complainant. Defendant appeals. Colona S. Nuckolls aiid husband, by deed of date May 1, 1912, acknowledged on May 2, 1912, and recorded on May 3, 1912, conveyed to Luther T. Page (the appellee) and Mary A. Page, his wife (the appellant), a certain house and lot in the city of Richmond, in consideration of the sum of $2,619.00 purchase money, the entire amount of which was furnished by the appellee.

<p>Appeal from an order of the State Corporation Commission.</p>

<p>Appeal from a decree of the Circuit Court of the city of Alexandria. Decree for" defendant. Complainant appeals.</p>

<p>1. Building Restrictions—Part of General Scheme—Covenant or Restriction Running with the Land.—Subsequent Deeds Not Containing the Restriction.—Where a building restriction (e. g., establishing a building line) in a deed from a land company to a vendee of a lot is inserted in conformity with and as a part of the execution of a general plan for the development of a certain known and well-defined part of the property of which the lot granted was a part, this general scheme being intended for the benefit of all the lots in that territory, the intention being to mutually benefit by the general scheme the lots sold as well as those retained by the grantor, and this intention actuating both the grantor and the grantee, the covenant or restriction runs with the land and binds the owner of the lot, even though subsequent deeds through which he derived title contained no such restriction.</p> <p>2. Building Restrictions—Enforcement in Equity—Restrictions Not Favored—Burden of Proof.—Courts of equity will enforce restrictive covenants in conveyances of real estate where the intention of the parties is clear in creating them, and the restrictions are reasonable. But they are not favored, and will hot be aided or extended by implication. The burden rests upon the person relying on such a covenant to bring himself within its terms. These principles apply with especial force to persons who are not parties to the instrument containing the restriction.</p> <p>8. Building Restrictions—Right of Subsequent Grantees of Grantor to Enforce.—In order for a building restriction to operate as between subsequent grantees of different adjacent lots or parcels of the same original tract, it must appear from the instrument expressly, or by a fair interpretation thereof, that it was inserted for that purpose; otherwise it will be assumed that it was intended by the parties to the original deed to inure only to the benefit of the grantor, or his heirs and assigns.</p> <p>4. Building Restrictions—Method of Establishing a General Scheme —Building Line.—The natural method for a landowner to follow in establishing and evidencing a general building line is to make some clear and definite record thereof by indorsement on the plat of the property, or by indicating a building line thereon, or by express recognition and provision in the several deeds to the purchasers.</p> <p>5, Building Restrictions—Right of Vendees to Enforce Restriction. —The mere adoption and existence of a general practice or custom, whereby the owner includes in each of his conveyances for lots a uniform building restriction, is not in itself and alone sufficient to give the various vendees the right to enforce the restrictive covenant inter sese. That will depend upon the intention of the grantor, and there must be affirmative and preponderating evidence, either by express provisions of the deeds, indorsement on the plat, or satisfactory proof, to show that the purpose of the plan was to establish a mutuality of covenant based upon a contemplated mutual benefit, and not merely a personal covenant with the grantor to be enforced or waived by him according to his interest or pleasure.</p> <p>6. Building Restrictions—Establishment of General Building Scheme—Case at Bar.—In the instant case, it did not appear that the land company by any corporate action ever fixed upon a definite and uniform building scheme, nor is anything of that sort indicated upon either of the two plats which it recorded, and there is nothing in any of the deeds to the separate lots to suggest that the building restriction was intended otherwise than for the benefit of the grantor. The company’s dealing with its property was inconsistent with and repelled the claim that there was a general scheme on the part of the company intended for the benefit of all the lots.</p> <p>Held: That the vendee of a lot from the company could not enforce a restriction as against a grantee from a prior purchaser whose deed contained the restriction.</p>

<p>1. Brokers—Action Against Brokers for Profits—Refusal of Brokers to Transfer Stock Bought by one Person to Another’s Account—• Case at Bar.—I, having an account with a brokerage firm, ordered the brokers to buy two hundred shares of a certain stock upon margin. The stock was purchased in the name of I, and the brokers claimed that they had no notice of any one else having an interest in the transaction. Upon the brokers pressing I for additional margins, one A, who claimed that the two hundred shares had been bought for him by I, wrote the brokers enclosing a check for $2,000 and asking the brokers to ■ transfer the two hundred shares to his account. This the brokers refused to do, but cashed the check and credited I’s account with the proceeds.</p> <p>Held: That A, upon this refusal, unless he was the principal or partner of I, had the right to demand and recover the $2,000, but he had no right to lie in wait, keep silent when he should have spoken, and withhold his claim from the brokers until they had closed I’s account, and thus reserve his freedom to determine whether he would demand the return of the $2,000 or claim the profits upon this particular stock.</p> <p>2. Set-Off, Recoupment and Counterclaim—Verdict Not Allowing Counterclaim Construed to Determine the Question Against Defendants.—In an action by a customer against brokers for profits alleged to have been made on stock bought on margin for the customer, the brokers filed a special plea of set-off, alleging that plaintiff and another party with whom they had an account were partners, and claiming of plaintiff the balance shown to be due them on this account.</p> <p>Held: That the verdict of the jury, having failed to allow this claim, must be construed to determine this contention against the brokers.</p> <p>8. Appeal and Error—New Trial—Verdict Set Aside by Lower Court Sustained in Appellate Court.—Ths Supreme Court of Appeals will sustain a verdict, although it was set aside by the trial judge, unless it can perceive that there had been a plain deviation from right and justice, and that the jury have found a verdict against the law, or against the evidence.</p> <p>4. Appeal and Ep.ror— -New Trial—Verdict Set Aside by Lower Court Sustained in Appellate Court—Action Against Brokers— Case at Bar.—-In the instant case, an action against brokers for profits on the purchase of stock on margin, there was a sharp conflict in the testimony, but according to the evidence introduced by the defendant one I bought the stock in his own name, paid the brokers thereon, and then undertook with the plaintiff, while he was largely indebted to the brokers, to transfer to plaintiff all of his rights in the most valuable stock for speculative purposes which he was carrying, without responding to the proper demand of the brokers for additional margin, and when the brokers refused to make the transfer, neither I nor plaintiff raised any further question as to the right of the brokers to make such refusal.</p> <p>Held: That a verdict of the jury in favor of the brokers was not plainly wrong, and that the trial court erred in setting it aside.</p>

<p>1. Taxation—Life Estate in Choses in Action—Nonresident Trustee.—.Where a citizen of this State, resident in the State, has a life estate in'choses in action held in trust for him by a nonresident trustee, such choses are taxable in this State, although they are not and never have been within the State, and the trustee is not a resident of the State.</p> <p>2. Taxation—Life Estate in Choses in Action—Nomresident Trus- . tee.—The tax, though assessed in the name of the trustee, is not against him but against the beneficiary. The trustee is the mere conduit through the medium of which the tax upon the property of a citizen passes into the treasury.</p> <p>3. Taxation—Life Estate in Choses in Action—Nonresident Trustee.—In the instant case, it was objected that under the prolusions of section 492 of the Code of 1904, as amended by Acts 1918, p. 169, the assessment should have been listed in the name of the trustee and not that of the life tenant.</p> <p>Held: That it was wholly immaterial to the life tenant whether the tax was assessed to and paid by the trustees or the life tenant, and one liable to assessment for taxes cannot evade payment, by reason of errors or irregularities which do not prejudice his rights.</p> <p>4. Taxation—Life Estate in Choses in Action—Nonresident Trustee—Situs for Taxation.-—-Section 492 of the Code of 1904, as amended by Acts 1918, p. 169, -Code of 1919, section 2307, undertakes to fix the situs for taxation of intangible property held by. a trustee for the benefit of a person over twenty-one years of age. The situs sought to be fixed is a situs in this State. If the trustee is not a resident of the State, then as to the fund held by the trustee there is no trustee for the purpose of the statute, and the property is, under the terms of the statute, to be listed by and taxed to the beneficiary in the county or corporation wherein he resides.</p>

Judgment for plaintiff. Defendant assigns error. This is an action brought by the defendant in error, J. W. Downing, against the plaintiff in error, the American Railway Express Company, to recover certain alleged damages occasioned by the loss, in transit, of 840 pounds of Paris green, a portion of a shipment of that commodity which, it is alleged, the Adams Express Company, on the .... day of June, 1918, received at Kensington, 111., a,s the property of, and undertook to…

<p>1. Appeal and Error—Divorce Suits—Witnesses Heard Orally— Section 5109 of the Code of 1919.—The Act of 1914, p. 154, permitting the trial court to take oral testimony in divorce suits, provided that the cause on appeal should be heard as other chancery causes and not as on a demurrer to evidence, and although the phraseology of section 5109 of the Code of 1919 differs from that of the act, it is fairly plain that the revisors did not intend any substantial change in this respect, and other sections of the chapter on divorce clearly negative the idea that a suit for divorce could ever be heard “as on demurrer to the evidence.”</p> <p>2. Appeal and Error—Weight Attached to the Finding of the Tribunal Charged with Weighing Oral Testimony—Whether a Commissioner in Chancery, a Jury, or a Court.—When all of the evidence in a chancery cause, as well as the pleadings, have been reduced to writing, and the trial court has nothing before it but the written record, including the evidence prepared by others, it has little, if any, advantage over the appellate court in determining the right of the cause. But the case is entirely different where the trial court has the witnesses before it and can observe their demeanor on the stand, and great weight has always been attached to the finding of the tribunal charged with weighing such evidence, whether it be a commissioner in chancery, a jury, or a court.</p> <p>3. Appeal and Error—Weight Attached to Commissioner’s Report. ■—-Though less weight is given to the findings of a commissioner in chancery than to those of a jury or a court, nevertheless, when the commissioner has seen and examined the witnesses, and the testimony is conflicting, and his conclusions are clearly supported by competent and unimpeached witnesses, the court will not set aside or disturb his report, unless the weight of the testimony which is contrary to his conclusions is such, on account of the number of the witnesses and the nature of their evidence, as to make it clear that the commissioner has erred.</p> <p>4. Divorce—Chancery Suit—Demurrer to the ' Evidence.—The suit for divorce is a chancery suit where the court decides both the law and the facts, and no jury is needed, and where there is no jury there can be no demurrer to the evidence.</p> <p>■5. Divorce—Demurrer to the Evidence.—There can be no demurrer to the evidence, nor hearing of a case as on a demurrer to the evidence in a suit for divorce because the concessions required in such case are forbidden by section 5106 of the Code of 1919, which has been the fixed policy of this State for over three-quarters of a century, Code 1849, ch. 109, section 9.</p> <p>6. Appeal and Error-—Divorce—Weight Given to Decree of Trial Court Where Witnesses Testified Orally in Open Court.—Where in a suit for divorce the trial court, under section 5109 of the Code of 1919, required the testimony to be given orally in open court, the decree of the trial court upon appeal is entitled to at least the same weight as the report of a commissioner in chancery, upon conflicting testimony, who saw and heard the witnesses testify, and whose report is supported by competent evidence and approved by the trial court.</p> <p>7. Divorce—Appeal—Evidence to Support Finding of Lower Court. —In the instant ease, a suit for divorce, the evidence, while conflicting, was abundant to support the decree of the trial court, and its findings, therefore, were affirmed.</p> <p>8. Alimony—Amount—Sufficiency.—An allowance to a wife of $100 a month for the support of herself and child on a divorce from bed and board held sufficient, where the husband was a young lawyer with no fixed income, but a practice of variable value.</p> <p>9. Alimony—Sufficiency—Wife’s Earning Capacity.—In fixing alimony it must be borne in mind that under modern conditions there is open to the wife practically every avenue for making money that is open to her husband; and that by the decree of the court she is released from her household duties, and she has no right to remain idle at the expense of her former husband, although it was through his fault that she was compelled to ask that the contract of marriage be rescinded.</p> <p>10. Divorce—Custody of Children—Welfare of Child.—Upon a divorce at the suit of the wife, if the record discloses that the custody of the father is as suitable and proper as that of the mother, there is no error in assigning to the father the custody of the child each alternate week, where the case is retained on the docket and the decree as to the custody may be changed at any time.</p> <p>11. Divorce—Custody of Child—General Buie.—The only general rule that can be announced is that the welfare of the child is the primary matter for consideration, and that this rule is to be administered with as much consideration for the tender ties of affection of the parents as possible under the circumstances. When that appears from the record to have been done by the trial court, the Supreme Court of Appeals will not hunt for any other reason to affirm its decree.</p> <p>12. Divorce—Appeal—Costs.—Upon the affirmance of a decree for divorce a mensa in favor of the wife, the Supreme Court of Appeals will grant the appellee the clerical expense of the preparation and printing of her brief, and a reasonable fee to her counsel.</p>

<p>1. Homestead—Bankruptcy—Right of General Creditor—Case at Bar.—A homestead exemption claimed and duly perfected before any of the proceedings involved in the instant case had been attacked or challenged cut off a general creditor’s right to subject the real estate selected as a homestead.</p> <p>2. Husband and Wife—Transactions Between—Gift.—A husband, a merchant, conveyed to his wife a stock of goods which she immediately resold to him. There was no valuable consideration for either transfer. After these transfers the husband became indebted to complainant for purchases of merchandise in the ordinary course of business. These purchases from complainant by the husband were made in his own name and solely on his own credit. The husband at the time of the sale to his wife and resale and thereafter continued in actual possession of the stock of goods.</p> <p>Held: That neither section 2414 nor section 2460-a, Code of 1904, in any way affected the title which the husband took under the contract of resale, and that the sale and resale between husband and wife did not constitute the wife a debtor as to purchases from complainant made by her husband.</p> <p>8. Election—Estoppel—Pleading—■Assuming Inconsistent Positions in the Same or Successive Suits.—Case at Ba/r.—Where a creditor in bankruptcy proceedings, with full knowledge of the facts, elected to treat certain real and personal property as belonging to a husband, and to assert its debt against him alone, the creditor cannot thereafter in another suit assume a different attitude, and claim that the property belonged to the wife, and that the debt was due from her.</p> <p>4. Election—Estoppel—Pleading—Assuming Inconsistent Positions in the Same or Successive Suits.—A party is forbidden to assume successive positions in the course of a suit, or series of suits, in reference to the same fact, or state of facts, which are inconsistent with each other or mutually contradictory.</p> <p>5. Bankruptcy and Insolvency—Exemptions—Homestead—Jurisdiction to Determine—Res Judicata.—A court of bankruptcy lias jurisdiction to determine the claim of a bankrupt to his exemption, and when it is determined then it is settled once for all and cannot be questioned in a collateral proceeding.</p> <p>6. Bankruptcy and Insolvency—Homestead, Exemption—Specific Mens.—The jurisdiction of bankruptcy courts does not extend further than the determination and allowance of the exemption. It has nothing to do with the enforcement of specific liens or other claims against the property paramount to the homestead.</p> <p>7. Bankruptcy and Insolvency—Fraudulent Conveyances—Homestead Exemption—Res Judicata.-—-In the instant case the transfers ¿which were challenged as fraudulent had never been in any way questioned when the homestead was claimed and set apart in the manner allowed by law, and the exemption was thereafter duly allowed, without challenge by the complainant, in the bankruptcy proceedings.</p> <p>Held: That complainant, if it ever had any right to assail the homestead, lost that right by its course in the bankruptcy court.</p>

<p>Appeal from a decree of the Circuit Court of Rappahannock county. Becree for defendants. Complainants appeal.</p>

<p>1. Railroads — Director General of Railroads — Parties — Action Against the Director General and a Railroad.—In the instant case, an action against the Director General of Railroads and a railroad for the death of plaintiff’s intestate, who was killed by a train of the railroad while the railroad was under the-control of the federal government and operated by the Director General of Railroads, the refusal of the trial court to dismiss the action against the railroad on the ground that, if there was any liability, the Director General was solely liable, was error.</p> <p>2. Railroads—Injuries on or Near Track—West-Bound Train Running on East-Bound Track.—In an action for the death of a signal maintainer killed by a train, one of the grounds of negligence alleged was the failure to notify deceased of the transfer of the west-bound train, which killed him, to the east-bound track. The transfer was made while decedent was between telegraph stations and could not be notified. Decedent was going west on a motor car on the west-bound track and transferred his car to the east-bound track shortly before he was killed.</p> <p>Held: That it was not necessary to notify the train crew that decedent had gone ahead on the west-bound track, and the signalman could not be notified between stations.</p> <p>3. Railroads—Injuries on or Near Track—Transfer of Trains From One Track to the Other—Case at Bar.—In the instant case, an action for the death of a signal maintainer by a west-bound train running on the east-bound track while it was the custom to run trains going west over the west-bound track, and trains going east over the east-bound track, the railroad company had the right to use its tracks interchangeably for trains going in either direction, and it was its constant habit to so use them whenever circumstances made it desirable to do so, and the rules of the company gave full warning of this fact, and the decedent had full knowledge thereof.</p> <p>4. Railroads—Injuries to Persons on or Near Track—Lookout by Engineer and Fireman—Burden of Proof to Show Negligence ■—Case at Bar.—In the instant case, an action for the death of a signal maintainer by a west-bound train running on the east-bound track, the burden of proof was on the plaintiff to establish the negligence of the engineer and fireman of the train which killed decedent, in failing to discover the presence of plaintiff’s decedent on the track and warn him of the approach of the train, and the evidence in the instant case was insufficient to establish the fact that there was negligence in the failure of the engineer and fireman to see the deceased.</p> <p>Z. Railroads—Injuries on or Newr Track—Outlook by Fireman.— It is the duty of a fireman, primarily, to fire his engine, and his employer cannot be charged with negligence for his failure to keep an outlook at a time when his duties require him to be firing.</p> <p>6. Documentary Evidence—Photographs and Drawings—Weight • Attached To.—Photographs and drawings do not always give us as accurate ideas of what may be seen from the locus in quo as the testimony of unimpeached witnesses who have been on the ground and have observed the situation, and testify as to what can and what cannot he seen from a given point. Such photographs and drawings,“however, when consistent with the testimony of witnesses, are strongly corroborative of their testimony.</p>

<p>Petition for a writ of prohibition.</p>

<p>Conditional Sales—Automobiles—Bona Fide Purchaser.—In an' action of detinue for an automobile, it appeared that plaintiffs had sold the automobile to their subagent, a dealer in Norfolk, where he had a place of business and advertised automobiles of the same make for sale, reserving title thereto, which reservation was recorded in the city of Petersburg. Before the recordation of the reservation of title in Norfolk, the automobile was sold there by the dealer to the defendant.</p> <p>Held: That the question of whether or not defendant was a purchaser for value without notice was for the jury, and that the trial court erred in giving a single instruction to the effect that the jury should find for plaintiffs if they believed from the evidence that the car in the possession of the. defendant was the same car mentioned in the contract containing the reservation of title.</p>

<p>1. Deeds—Rights of Grantee—All of Grantor’s Rights Pass Unless a Contrary Intention Appears.—The grantee, in a deed for land conveyed without any words of limitation, usually succeeds to every right of his grantor therein, or, as expressed in Virginia statutes, such a deed passes the fee simple or whole estate or interest which the grantor had power to dispose of, unless a contrary intention shall appear by the conveyance. (Code 1919, sec. 5149.)</p> <p>2. Chesapeake and Ohio Railway Company—Deeds—Siding—Reservation of Rights as to Siding Upon Grant of Land—Case at Bar.—In the instant case, an action of unlawful detainer, it appeared that the Chesapeake and Ohio Railway Company, by agreement under seal, dated July 1, 1891, granted to defendant the right to construct a siding over certain of its realty, and to occupy and use the same for ten years, and thereafter, until one year’s notice in writing from either party. By deed in 1905, the Chesapeake and Ohio conveyed to the plaintiff a certain parcel of land, which included a portion of the strip occupied by this sidetrack. This last deed contained a clause to the effect that the Chesapeake and Ohio Railway Company “further reserves from the operation of this deed all the rights” of the defendant, growing out of, or in any way connected with, the agreement bearing date the first day of July, 1891. Notice of defendant’s contract was also given plaintiff by other language in the deed. Defendant was a large shipper over the lines of the Chesapeake and Ohio, which, therefore, had an interest for desiring the continued maintenance of the sidetrack, because to destroy it would injuriously affect its own business.</p> <p>Held: That express notice of the existing contract with defendant was given to plaintiff, and by excepting it from the operation of the deed, the right to change the existing status by the independent action of the grantee was withheld.</p> <p>3. Interpretation and Construction—All the Language Must be Considered.—It is fundamental that in construing written instruments all the language used must be considered and its true meaning determined if possible.</p> <p>4. Interpretation and Construction—Surrounding Circumstances and Motives.—It is frequently helpful in determining the meaning of obscure and doubtful language to consider the surrounding circumstances and the probable motives of the parties.</p> <p>5. Words and Phrases—“Reserve.”—While the word “reserve” is an appropriate word when given its obvious and technical meaning to indicate that the grantor intended thereby to withhold something from the grantee, it is quite inappropriate and unnecessary if intended merely to preserve the existing rights of a third party under a contract with the grantor which were already otherwise fully safeguarded.</p> <p>6. Words and Phrases—Reserve—Reserve Equivalent to Except.— To reserve from the operation of a deed appears to be the equivalent of excepting therefrom and retaining in the grantor some right, title or interest in the subject matter, which, but for such reservation, would pass thereunder to the grantee.</p>

Judgment for defendant. Plaintiff assigns error. This is an action of assumpsit, instituted by W. H. Harrison, the plaintiff in error (hereinafter called plaintiff), against the Gardner Investment Corporation, the defendant in error (hereinafter called defendant), the declaration containing the common counts of a declaration in assumpsit at common law, the object of the action ;being to recover the sum of $500.00, money of the plaintiff alleged to have been “had and received…

<p>Appeal from a decree of the Circuit Court of the city of Lynchburg. Decree for complainant. Defendant appeals.</p>

<p>1. Bill of Particulars—Notice of Motion for Judgment—Sufficiency—Defendant’s Course Where Bill of Particulars Insufficient.—In the instant case defendant assigned as error the action of the trial .court in overruling its motion to reject the plaintiff’s bill of particulars. Not only was the bill of particulars full enough to give the defendant notice of every item of its claim, but the notice of motion also contained a detailed statement of the plaintiff’s claim. If the bill of particulars was insufficient, the defendant might have moved the court to reject any evidence offered by the plaintiff touching any matter not described in its notice or other pleading so plainly as to give notice of its character. This it did not do.</p> <p>Held: There was no merit in this assignment of error.</p> <p>2. Ships and Shipping—Action by Steamship Company for Breach of Contract of Carriage—Damages—Idleness of Boat—Case at Bar.—In an action by a steamship company for breach of a contract for the carriage of 40,000 barrels of cement, defendant moved the court to strike out all evidence tending to show any damage to plaintiff by reason of the idleness of its boat. Defendant had informed the steamship company that there were six to ten more cars to come forward, and these shipments were scattered through a period of several months. The steamship company was kept in idleness waiting for the arrival of these cars.</p> <p>Held: That if the defendant did not desire plaintiff to hold itself in readiness to transport the remaining cars of cement im- • mediately upon their arrival at the point of shipment, in accordance with the contract, it should have so informed plaintiff, and discharged it from liability under the contract. Therefore, the evidence was clearly admissible.</p> <p>3. Contracts—Impossible Contracts—Contract not Inherently Impossible—Contract Depending on Act of Third Party.—The rule appears to be that if one undertakes unconditionally to perform an act which is not inherently impossible, but merely requires the acquiescense or consent of a third party, or the performance of a preceding act by the latter, the nonperformance is not ordinarily excused by the fact that it subsequently proves impossible for the promisor to comply with the contract, because of the refusal of the third party to give his consent or perform the act; in other words, the contract will not, merely from the fact that acquiescence in or performance of an act by a third party must precede compliance therewith, be construed as conditional upon, such acquiescence or performance.</p> <p>4. Contracts—Impossible Contracts—Subsequent Impossibility.—A man may, by an absolute contract, bind himself to perform things which subsequently become impossible, or to pay damages for the nonperformance; and this construction is to be put upon an unqualified undertaking where the event which caused the impossibility was or might have been anticipated and guarded against in the contract.</p> <p>5. Contracts—Breach—Damages—Unreasonable Delay — Profit — Performance Prevented by Defendant.—A plaintiff may recover damages sustained by him for loss resulting from unreasonable delay on the part of the defendant in permitting him to perform his contract, and, when he has been prevented by the defendant from completely performing his contract, he may also recover the profit he would have realized if he had been permitted to perform fully. This is not a double recovery.</p> <p>6. Damages—Object of Law in Awarding Damages.—The object of the law is awarding damages is to make amends, or reparations, by putting the party injured in the same position, as far as money can do it, as he would have been if the contract had been performed.</p> <p>7. Contracts—Impossible Contracts—Contract Not Inherently Impossible—Contract Depending on Act of Third Party—Case at Bar.—In the instant case, an action by a steamship company against a shipper for breach of contract, the basis of the contract was the transportation of 40,000 barrels of cement. The cement was in existence and defendant had agreed to ship and plaintiff had agreed to carry it, and defendant cannot be excused from the performance of his contract because of the lawful interference of a third party, the United States, which cancelled its contract, as it had a right to do for the work upon which the cement was to be used, plaintiff having no knowledge of the terms of the government contract. If defendant intended to rely on such excuse, it should have qualified its contract with plaintiff so as to make the excuse available.</p> <p>8. Contracts—Assumption of Contract by Another—Sufficiency of Evidence to Show Assumption.—Plaintiff, a steamship company, sought to recover damages from defendant, a cement company, for defendant’s breach of a contract of shipment of cement. Plaintiff alleged that the contract of shipment was made with the predecessor of defendant and assumed by defendant. Defendant contended that there was no evidence to prove the assumption of the contract by it. Defendant’s officers took up the contract where its alleged predecessor left it, and conducted all correspondence in its own name, made payment of amounts due under the contract at the rates therein stated, and when the claim was asserted against it defendant failed to suggest that the liability, if any, was against its alleged predecessor.</p> <p>Held: That the evidence was sufficient to warrant the jury in holding that defendant had assumed the obligations of the contract of its predecessor.</p> <p>9. Carriers—Action by Carrier for Breach of Contract of Shipment —Damages not Excessive—Case at Bar.—In the instant case, an action by a steamship company for a breach of contract of shipment by defendant, it appeared that plaintiff’s boat was kept idle two-thirds of the time from July to November, waiting the arrival of the last shipment, during which time overhead expenses were in excess of what they would have been if the transportation had gone forward according to contract. Defendant’s failure to release plaintiff from the contract prevented plaintiff from seeking other business. Only fuel and oil were saved while the boat was idle, approximately about $307. Plaintiff’s claim, with interest, was $9,019.54. The jury returned a verdict for only $7,854, without interest.</p> <p>jHeld: That the damages were not excessive.</p>

<p>Appeal from a decree of the Circuit Court of Accomac county. Decree for complainants. The named defendant appeals.</p>

Decree for complainants. Defendant appeals. This cause involves a controversy between the appellant, Motley, claiming to be a lien creditor, and Vicello & Bro. and others, appellees, who are lien creditors of one Mrs. Minnie L. Reynolds.

<p>Error to a judgment of the Circuit Court of Campbell county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Crossings—Negligence of Railroad—Failure to Give Warnings. ■—In an action for personal injuries sustained by plaintiff in a collision at a railroad crossing, a count of the declaration which alleged that defendant railroad negligently failed to sound a bell, blow a whistle, or give any warning of its approach or keep a careful lookout for the crossing, showed actionable negligence on the part of the defendant.</p> <p>2. Crossings—Contributory Negligence—Failure to Listen—Case at Bar.—In an action for personal injuries sustained in a collision between plaintiff’s buggy and an engine of defendant railroad at a crossing, a count of the declaration alleged that plaintiff slowed down and listened for the train at a point 150 yards from the crossing, that being the last point at which plaintiff could have seen the train before his horse was upon the track, and then drove straight ahead without further precaution. The count also alleged that it would have been futile for the plaintiff to get out of the vehicle and go ahead to look for the train.</p> <p>Held: That the count showed contributory negligence on the part of the plaintiff. Although he could not effectively look after passing that point, he ought to have continued to listen.</p> <p>3. Declaration—Counts—One Count Aided by Another.—In order that the allegations of one count of a declaration may be aided by the allegations of another, they must be referred to or made part of the first count.</p> <p>4. Crossings—Last Clear Chance—Declaration.-—In an action for personal injuries sustained in a collision at a crossing, a count in plaintiff’s declaration alleged that after defendant discovered, or by the use of ordinary care could have discovered, plaintiff’s peril and avoided the accident, it failed to stop or control its train and thereby collided with and destroyed plaintiff’s buggy and seriously injured plaintiff.</p> <p>Held,: That this count of the declaration made a good case for recovery on the doctrine of the last clear chance.</p> <p>5. Crossings—Contributory Negligence—Agreement between Town and Railroad that Railroad would Run Slowly Over Crossing—Knowledge of Plaintiff.—Where there was no allegation that plaintiff knew or relied upon an alleged agreement between a town and defendant railroad, that the railroad would operate its trains over the crossing where the accident occurred at four miles per hour, the agreement did 'not relieve the plaintiff in any degree of his duty to look out for trains at the crossing. However, such agreement may have affected the primary liability of the defendant. •</p> <p>6. Crossings—Last Clear Chance—Plaintiff’s Declaration Showing Train could not have been Stopped in Time.—In an action for injuries sustained in a collision between plaintiff’s buggy and a train of defendant railroad at a crossing, a, count in plaintiff’s declaration showed that the train was running too fast to stop, and, hence, however much this rapid rate of speed might have affected the alleged negligence of the defendant in its breach of an agreement with the town to run slowly over the crossing, there was no last clear chance to save the plaintiff.</p> <p>7. Crossings—Contributory Negligence—Stop, Look and Listen— Duty to Stop—Case at Bar.—A count in plaintiff’s declaration which alleged that he drove slowly and listened intently for a train as he approached the crossing where the accident occurred was sufficient to take the case to the jury upon the question of plaintiff’s contributory negligence. By adequate reference to another count, the count in question showed that it would have been futile to attempt to look for the train by leaving the buggy, and the plaintiff was entitled to have a jury say whether he exercised due diligence by driving slowly and listening intently, even though he did not actually stop to listen as he approached the crossing.</p> <p>8. Crossings—Slop, Look and Listen—General Rule.—A railroad track is itself a signal of danger, and imposes upon one approáching it the duty to look and listen, but not the duty to stop, or to get out of the vehicle, in order to look and listen.</p> <p>9. Pleading—Declaration—Vague and General Allegations—Demurrer.—Where the allegations of a count in a declaration are too vague and general to state a good cause of action, there is no error in sustaining a demurrer to it.</p>

Judgment for plaintiff. Defendant assigns error. This action was instituted by J. W. Avery, the defendant in error (who will be hereinafter called plaintiff), against P. J. Rennolds, trading and doing business under the firm name and style of J. A. Rennolds & Bro., the plaintiff in error (who will be hereinafter called defendant).

<p>Error to a judgment “of the Hustings Court, Part II, of the city of Richmond in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Crossings—Evidence as to Speed of Train—Case at Bar.—In an action for death of plaintiff’s intestate killed by a car of defendant company while approaching a station, the evidence was held not to sustain the contention that there was primary negligence on the part of defendant company in running the car past the station at a reckless and dangerous rate of speed, where the motorman testified that the car was running about twelve miles per hour, and no other witness gave any evidence capable of conveying a definite conception of the actual speed of the car.</p> <p>2. Crossings—Violation of Ordinance—Footpath not a Grade Crossing.—“Grade crossing” within an ordinance regulating the rate of speed of trains and warnings to be given at grade crossings refers to street crossings, and does not include a mere footpath across the tracks.</p> <p>S. Crossings—Headlights on Car—Case at Bar.—In an action for death of plaintiff’s intestate while attempting to cross tracks of defendant railroad, the motorman testified that the headlights were burning at the time of the accident. A witness for plaintiff testified that there was “no headlight lit” when the car was still nine hundred feet away from the point of accident. Moreover, at the time of the accident it was not dark.</p> <p>Held: That this evidence failed to establish negligence on the part of defendant company.</p> <p>4. Crossings—Omission to have Station Lighted—Proximate Cause. —Where plaintiff’s intestate was injured before she reached the station of defendant railroad, and there was nothing in the record to show that lights in the station would have in any way prevented the accident, if the lack of lights in the station was negligence, it was in no way the proximate cause of the injury complained of.</p> <p>5. Demurrer to the Evidence—General Buie—On a demurrer to the evidence, the demurrant is considered as admitting the truth of all his adversary’s evidence and all just inferences that can be properly drawn therefrom by the jury, and as waiving all his own evidence which conflicts with that of his adversary or which has been impeached, and all inferences from his own evidence (although not in conflict with his adversary’s) which do not necessarily result therefrom.</p> <p>6. Demurrer to the Evidence—Witnesses—Whether Witness has been Impeached.—In an • action for death of plaintiff’s intestate killed by a car of defendant railway company, where the testimony of the motorman was not contradicted, except in a few instances, and as to matters immaterial to a proper decision of the case, it cannot be said that his testimony was impeached, within the rule that on demurrer to the evidence the demurrant waives all his evidence which has been impeached.</p> <p>7. Railroads—Injuries on or near Tracks—Contributory Negligence—Stepping on Track without Looking—Demurrer to the Evidence.—Having due regard for the demurrer to the evidence rule, if it conclusively appears from the evidence that plaintiff’s intestate came to her death by thoughtlessly and negligently stepping on the defendant company’s railroad track just in front of one of its moving trains, under such circumstances that the company was powerless to save her from injury and death, when, by simply looking down the track she could have seen the approaching train for a distance of two hundred and eighty feet and saved herself from injury, then plaintiff’s intestate was guilty of contributory negligence, and plaintiff cannot recover.</p> <p>8. Railroads—Injuries on err near Tracks—Stepping on Traek without Looking—Exception to the Rule of Negligence per se.—The exception to the rule that stepping on a railroad in front of an approaching train, without looking, is negligence per se, exists only when the circumstances are so unusual that the injured party could not have reasonably expected the approach of the train at the time he went upon the track, such as when a train has just passed upon the track, and in the instant case no such circumstances existed.</p> <p>9. . Stations—Duty to Passengers—Contributory Negligence of Passenger.—While it is true that passengers going to or from railway trains, at railroad stations, may rely upon the railway company to use ordinary care to protect them against injury from the operation of its trains, yet this puts upon the passenger the corresponding duty to use ordinary care to protect himself, and a failure to use such care on his part is negligence, and stepping upon the track just ahead of an approaching train is a failure on the part of the passenger to use such care.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Officers and Agents of Private Corporations—Railroad Engineer— Scope of Authority—Case at Bar.—In the instant ease, plaintiff, a contractor, entered into an agreement with the Atlantic Coast Line and the Seaboard Air Line to erect a station, each company to pay one-half the cost. By the terms of the contract the work of construction was to be under the supervision of the chief engineer of the Seaboard. After work under the contract had begun, as it was desired to change the location of the station, the chief engineer of the Seaboard ordered the work to stop, and agreed with plaintiff for a sum as additional compensation to compensate them for stopping the work.</p> <p>Held: That the chief engineer of the Seaboard was acting as agent for both roads, and, moreover, his action was ratified by both companies by their conduct in consenting to the change of location and in contributing money towards the cost of removal.</p> <p>2. Contracts—Damages for Unreasonable Delay in Permitting Party to Perform his Contract.-—A plaintiff may recover damages sustained by him for loss resulting from unreasonable delay on the part of the defendant in permitting him to perform his contract.</p> <p>3. Officers and Agents of Private Corporations-—Rmb-oad Engineer—Scope of Authority—Case at Bar.-—-Plaintiff, a contractor, entered into a contract with the Seaboard Air Line and the Atlantic Coast Line to erect a union station, each company to-pay one-half the cost. By the terms of the contract, the work of construction was to be under the supervision of the chief engineer of the Seaboard. After work under the contract had begun, as it was desired to change the location of the station, the chief engineer of the Seaboard ordered the work to stop, and made a new contract with plaintiff for removing the building to the new site.</p> <p>Held: That the work of removal and rebuilding was done under a new contract, and the chief engineer of the Seaboard had no authority to bind the Coast Line; and that, knowing it was working under a new contract, plaintiff was charged with the duty of inquiring as to the extent of the authority of the chief engineer of the Seaboard to bind the Coast Line.</p> <p>4. Appeal and Error—Judgment by Appellate Court—Section 6365 of the Code of 1919.—Where there is no reason to believe that, upon another trial, any new or different evidence would be introduced which ought to affect the result, and the facts before the Supreme Court of Appeals are such as to enable the court to attain the ends of justice, it should proceed to dispose of the case under section 6365 of the Code of 1919, and enter final judgment upon the merits.</p>

<p>Error to a. judgment of the Circuit Court of Arlington county upon a petition to obtain a town charter. Judgment for defendants. Petitioners assign error.</p>

<p>1. Wills—Presumption A gainst Intestacy—Rebuttal of Presumption —Residuary Legatees and Devisees.—Where a party dies and leaves a will, the presumption is that he did not intend to die intestate as to any of his property; but where it is manifest from the express words of the will that a gift of the residuum is confined to a particular fund or description of property, or to some certain residuum, the residuary legatees will be restricted to what is thus particularly given.</p> <p>2. Wills—Residue—Residue of a Definite Fund.—Where definite portions of a definite fund are given to various persons and then the residue of that definite fund is given to some one else, the residue is as much a definite fund as any other part of the whole fund so given, and is not a residue in the ordinary meaning of that term.</p> <p>S. Wills—Construction—Words Taken in Their Ordinary Sense.—A testator is presumed to use the words in which he expresses himself in his will in their primary or ordinary sense, and in construing the will the words employed are to be taken in that sense, unless it is manifest from the context of the whole will that the testator intended to use them in a different sense.</p> <p>4. Wills—Ambiguity—Statute of Descent and Distribution.—Where an ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption is that the testator intended that his property should go in accordance with the laws of descents and distributions.</p> <p>5. Wills—Construction—Intent Governs where Meaning is Plain.— The primary consideration and rule of construction is to determine the intention of the testator from the language which he used. If the meaning of that language is plain, the will must be given effect accordingly. This rule is elementary, and to it all others are subordinate and subservient.</p> <p>6. Wills—Construction—Doubt as to Meaning—Situation of the Testator.—If there be doubt as to the meaning, then the auxiliary or subordinate rule to be first applied, and the one of most usefulness and importance, is for the court to place itself as nearly as possible in the situation of the testator at the time of the execution of the will.</p> <p>7. Wills—Construction—Partial Intestacy—Case at Bar.—In the instant case, testator’s will did not contain a general residuary ' clause, but simply a clause authorizing and directing the executor to sell all his real and personal property, with certain exceptions therein stated, and pay all his just debts and funeral expenses, and after paying certain legacies, “the remainder of the money' to be equally divided between six of my children.” The money so divided being clearly the money realized from such sale, the language quoted cannot include other lands or the money derived from the sale of other lands.</p> <p>8. Wills—Construction—Partial Intestacy—Case at Bar.—A testator conveyed certain land to his daughter, Virginia, the testator to remain in the possession of the land during his life, and at his death the daughter to take possession of the land, and should she die without issue, the land to revert and become a part of testator’s estate to be divided as though it had never been deeded to her. By his will, the testator directed his executor to sell all his real and personal estate that he had not “deed” to his children, and that the money derived from such sale and remaining after payment of all just claims against his estate and the satisfaction of two specific legacies, to be divided between six of his children, naming them, including his daughter, Virginia.</p> <p>Held: That the land in which the daughter, Virginia, had a life estate was not disposed of by the will, but at her death passed under the law to the heirs of the testator.</p>

<p>1. Divorce—Jurisdiction—Vemie—Domicile—Residence.—The jurisdiction of the courts of Virginia to grant divorces being a special statutory and limited jurisdiction, the facts that the plaintiff has been domiciled in Virginia for at least one year next preceding the commencement of the suit for divorce; that plaintiff was domiciled in Virginia at the time of bringing the suit; that defendant was not a resident of Virginia; and that plaintiff was a resident of the city or county in which the suit was instituted, are jurisdictional under the provisions contained in section 5105 of the Code of 1919, and do not concern merely the venue.</p> <p>2. Divorce—Domicile of Plaintiff—Domicile of Origin.—In the instant case, as shown by the uncontroverted evidence, the domicile of origin of the husband, the plaintiff, was in Virginia. That fact of itself, when shown, was prima facie, and, hence, sufficient evidence to establish the fact that the plaintiff’s domicile continued unchanged from his birth to the time of suit, and so had been in Virginia, for more than one year prior to the commencement of the suit; unless the abandonment of that domicile by the acquisition of a new domicile of choice affirmatively appeared from the evidence, and there was no evidence tending to show that any of the essential requisites for the acquisition of a domicile of choice by plaintiff existed.</p> <p>3. Divorce—Jurisdiction—Residence of Defendant—“Resident” and “Domiciled” Distinguished—Case at Bar.—-Where plaintiff exercises the option given him by section 5105, Code of 1919, of bringing a suit for divorce “in the * * * corporation of the plaintiff’s residence,” the fact that defendant was not a resident of the State of Virginia, being one of the conditions upon which such option is given by the statute, becomes jurisdictional. But “resident,” as thus used, is to be distinguished from “domiciled,” and though the domicile of defendant might be in Virginia, still if she occupied a separate place of abode in the city of Washington, she was not a resident of Virginia.</p> <p>4. DoMiCiLE-AResidewee Distinguished from Domicile—Meaning of Residence as used in Statutes of Limitations, Attachment and Divorce.—A person’s place of abode, or habitation, as contra-distinguished from the place of mere transient, or, under some circumstances, even daily presence, for business or pleasure, is the place of one’s residence within the meaning of the divorce statute section 5105 of the Code of 191.9), as it is of statutes of limitations, attachment statutes, and the like. One may he domiciled in one State and be a resident of another, within the meaning of such statutes.</p> <p>5. Divorce—Desertion—Constructive Desertion—Denial of Sexual Intercourse—Ca.se at Bur.—In the instant case, the desertion which was the basis of the decree for divorce by the lower court was constructive desertion, consisting, in accordance with the preponderance of the. evidence, in the willful withdrawal from the husband, without just cause, more than three years prior to suit, of the privilege of sexual intercourse, and the continuance of such withdrawal down to the time of suit, accompanied by gross neglect of the duties of a wife in respect to the keeping of her husband’s room in a reasonable condition of cleanliness and comfort, and neglect in respect to the meals of the husband, such desertion being preceded by repeated and violent abuse of the husband, and repeated groundless charges of adultery. The wife did not leave the home of the husband until a few days before suit was instituted.</p> <p>Held: That the decree of the lows]' court granting an absolute divorce on the ground of desertion would be affirmed.</p> <p>6. Divorce—Hearing Ore Tenus—-Weight of Tmal Court’s Finding.— In a divorce suit where all the testimony is heard ore tenus by the court below, which had the opportunity cf observing the witnesses and their demeanor while testifying, the decision of the lower court upon the facts is entitled to great weight.</p> <p>7. Divorce—Desertion—Constructive Desertion—Denial of the Privilege of Sexual Intercourse.—The willful withdrawal of the privilege of sexual intercourse, without just cause or excuse, constitutes willful desertion under section 5103 of the Code of 1919, when such withdrawal is accompanied with such willful breach and neglect of other marital duties as to practically destroy the home life in every true sense and to render the marriage state well-nigh intolerable and impossible to be endured. Such conduct, on the part either of husband or wife, is considered to be a general withdrawal from the duties of the marital relationship; and, if willfully done, without just cause or excuse, this, by the great weight of authority, constitutes willful desertion.</p>

<p>Error to a judgment of the Circuit Court of the city of Williamsburg and county of James City in an action of trespass on the case.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond in eminent domain proceedings. Judgment for defendants. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of the city of Williamsburg and county of James City. Decree for complainant. Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Campbell county. Decree for complainants. Defendant appeals.-</p> <p>The opinion states the case.</p>

<p>1. Exceptions, Bill of—Certification of Evidence—Assignment of Error that Damages were Grossly Inadequate—Case at Ban'.-—■ In an action for damages, plaintiff moved to set aside the verdict on the ground that the damages allowed were grossly inadequate, and presented a bill of exceptions which did not certify all the evidence adduced by the parties, but only the evidence relating to the quantum of damages. Defendant moved to dismiss the writ of error on the ground that no proper bill of exceptions had been signed.</p> <p>Held: That, under section 6339, Code of 1919, a motion to dismiss must be sustained.</p> <p>2. Exceptions, Bill of—Certification of Evidence—Assignment of Error that- Damages were Grossly Inadequate—Case at Bar.— Plaintiff, in an action for damages, asked for a writ of error on the ground that the damages allowed were grossly inadequate. The bill of exceptions did not certify all the evidence, but only that relating to the quantum of damages. As defendants did not assign error or ask for any relief, plaintiff argued that they were concluded upon the question of their liability, and argued that the only evidence necessary before the Supreme Court of Appeals under Section 6339 of the Code of 1919 was that relating to the adequacy of the damages.</p> <p>Held: That plaintiff’s position could not be sustained as it might be that the jury awarded only nominal damages because they could not agree that the plaintiff was entitled to recover, and ■ that in substance and effect it might be that the verdict was a mere compromise of the different views of the jury for the purpose of ending the litigation.</p> <p>3. Appeal and Error—Exceptions, Bill of—Facts not Before the Appellate Court—Presumption that Trial Court Committed no Error.—He who alleges error in the judgment of a trial court should come prepared to show it by the record, and this he can rarely do unless he places the facts before the Supreme Court of Appeals substantially as they appeared at the trial, because unless affirmatively shown there is a presumption that the trial court committed no error.</p> <p>4. Appeal and Error—Exceptions, Bill of—Entire Evidence not Certified.—In the instant case, where plaintiff sought to have a verdict set aside as inadequate, where the entire evidence upon which the verdict and judgment was based was not certified, the Supreme Court of Appeals was unable to determine whether or not there was error, as it did not appear from the incomplete record that the plaintiff was entitled to recover anything.</p> <p>5. Exceptions, Bill op-—Certification of all the Evidence—Presumption in Ea.vor of Judgment of Trial Court.-—The general rule is that a bill of exceptions must either state or show by clear inference that the evidence which is certified is all of the evidence, otherwise the appellate court will not know upon what grounds the trial court based its judgment, and hence the judgment will be presumed to be right.</p> <p>6. Appeal and Error-—Exceptions, Bill of—New Trial—All the Evidence not Before the Appellate Court—Question of Damages— Nominal Damages— There are many precedents for the view that where the evidence is not'all before the appellate court, a new trial will not be granted on the sole question of damages, as well as for the proposition that unless it appears affirmatively that the plaintiff is entitled to recover substantial damages, a verdict for nominal damages will not be set aside but will be treated as in the nature of a verdict for the defendant.</p>

<p>1. Quo Warranto—Demurrer to Information in the Nature of a Writ of Quo Warranto—Legal Effects of Demurrer.—The legal effect of a demurrer to an information in the nature of a writ of quo warranto was to admit the facts but not the conclusions of law stated in the information.</p> <p>2. Gas—Contract with Municipality for Use of Streets—Limited or Unlimited Time.—Where a question at issue was the proper construction to be placed on a contract between a gas company and a municipality for the use of the streets of the municipality by the gas company to determine whether the grant was for a limited or unlimited period, and there had been no lapse or break in the corporate existence of the gas company since the date of its original incorporation, the fact that the charter had been twice amended to avoid a forfeiture, is material only in so far as the necessity for such amendments bears upon a proper construction of the franchise granted. And the same is true of the fact that the original franchise was granted, to the company, and not in terms to its successors and assigns.</p> <p>3. Gas—Contract with Municipality for Use of Streets—Authority of Municipality to Grant Use.—The city of Portsmouth had legislative authority in 1853 under section 23 of chapter 56 of the Code of 1849 to grant a franchise to a gas company for the use of its streets. Such legislative authority, of course, was necessary to the validity of the grant.</p> <p>4. Gas—Contract with Municipality for Use of Streets—Limited or Unlimited, Time—Buies for Construction of Contract.—Where the question at issue was whether a grant by a municipality to a gas company of the right to use the streets of the municipality was for a limited or unlimited time, and the language of the resolution granting the privilege, unaided by extrinsic evidence, was not sufficiently definite and unambiguous to constitute a safe guide in arriving at the intention of the parties, the court must look to the situation of the parties when the contract was made, the subject matter, the purposes to be accomplished, and particularly to the subsequent construction which the parties themselves had placed upon the contract.</p> <p>5. Gas—Contract with Municipality for Use of Streets—Limited or Unlimited Time—Grant of Exclusive Privilege for Limited Time.—In a resolution by a town council granting a gas company the privilege of using the city streets, no time was fixed for the termination of the period during which the company was to use and occupy the streets for the distribution of gas. Under the resolution the company was to have an exclusive privilege for fifteen years, and its property was to be exempt from town taxes for ten years, but the resolution did not expressly say, and it is not necessarily implied from these provisions, that the right to use the streets was to cease at the end of fifteen years.</p> <p>6. Gas—Grant by Municipality of Use of Street's—Construction of Public Grant.-—Public grants, such as grants by municipalities to gas companies of the right to use and occupy the streets of the municipality for the distribution of gas, are to be strictly construed. But this principle of construction does not deny a fair and reasonable interpretation to such grants, or justify the withholding of that which it satisfactorily appears the grant was intended to convey.</p> <p>7. Statutes—-Constmiction—Public Grants.-—Although public grants are to be strictly construed, in construing such grants the ■ courts have been careful to extend a reasonable and just protection to public utility corporations whose investments have necessarily been based upon calculations of future growth and development.</p> <p>S. Gas—Grant by Municipality of Use of Streets—Limited or Unlimited Period.—Where the question at issue was whether a grant by a municipality to a gas company of the use of the municipality’s streets for the distribution of gas was of limited or unlimited duration, the fact, unequivocally alleged in the information, that the company for more than sixty years had been using the streets of the city, precludes any contention that the parties construed the franchise as limited in duration by fifteen years, during which, under the grant, the company was to have the exclusive use of the streets for the distribution of gas, or by the potentiality that the charter of the gas company might expire by legislative limitation.</p> <p>9. Corporations—Franchise—Distinction Between Franchise to be a Corporation and Franchise to Have and Use and Hold Bights. —There is a clear distinction between a franchise to be a corporation and a franchise to have and use and hold rights which are contraetural and proprietary in their nature. A corporation can take a franchise of the latter class for a period longer than its corporate existence.</p> <p>10. Municipal Corporations—Grant of Franchise to Public Service Corporation—Implied Grant—Writing.—A franchise by a municipality to a public service corporation need not always be granted expressly or in writing, but may be conferred by implication.</p> <p>11. Gas—Grant of Franchise for Use of Streets by Municipality— Limited or Unlimited Period.—Where there is room for doubt as to whether a town by a resolution of its council intended to consent to a gas company’s use of its streets for an indefinite period or for a period limited by the company’s charter, then the question whether the company, in view of its charter rights, needed any authority from the town, may be considered in arriving at the intention of the parties. If such authority was not needed, it is not unreasonable to argue that it would not have been asked for or granted.</p> <p>12. Gas—Grant of Franchise for Use. of Streets by Municipality— Limited or Unlimited Period.—Where the question at issue was whether by a resolution of a town council a town intended to grant a gas company a right to use its streets for the distribution of gas for a limited or unlimited time, the parties cannot be said to have contracted under the influence of powers or limitations created by the gas company’s charter, where such charter had not been granted at the time the resolution was passed.</p> <p>13. Gas—Use of Streets of Municipality—Right to Use Streets Under Charter Provision Without Consent of Municipality.—The charter of a gas company authorized the company to use the streets of a city for the purpose of distributing gas. But the charter was expressly made subject to all the provisions of chapters 56 and 57 of the Code of 1849, except so far “as this act may otherwise prescribe.”</p> <p>Held: That, by virtue of section 23 of chapter 56 of the Code of 1849, the gas company could not lawfully have occupied the streets of the city without the consent, express or implied, of the city.</p> <p>14. Municipal Corporations—Use of Streets by Public Utilities— Consent of Municipality.—Ever since the Code of 1849 went into effect, it has been the general policy of this State to require that the consent of municipalities shall first be given before their streets shall be occupied by the works of any corporation for public improvement. An exception to that policy, to be recognized, would have to be very clearly created.</p> <p>15. Municipal Corporations—Use of Streets by Public Utilities— Consent of Municipality—Mode of Consent.—No particular mode of manifesting the municipal consent to the use of the streets of the municipality by a public utility is in general prescribed, and in the absence of a prescribed form, such consent may be either express or implied. And-it has been held that consent may be presumed where the streets of the municipality have been used for a long period of years under such circumstances as amount to a claim of right.</p> <p>16. Municipal Corporations—Use of Streets by Public Utilities— Consent of Municipality—Whether Limited as to Time or Perpetual.—A franchise once granted to use the streets, with no limit as to time, and no right of revocation reserved, is usually construed as perpetual, after acceptance and user, so long as a grantee observes the conditions under which the grant is made.</p> <p>17. Constitutional Law—Construction—Retroactive Construction— and 125 of the Constitution of 1902, in regard to the use of the Sections 124 and 125 of the Constitution of 1902.—-Sections 124 streets of a city by a gas company and the grant of a franchise by a municipality to á gas company, have no retroactive effect. To hold otherwise would violate elementary rules of construction. And furthermore, to so hold in the instant case would impair the obligation of the contract between the gas company and the city for the use of the city’s streets, and deprive the company of its property without due process of law.</p> <p>18. Corporations—Amendment or Extension of Charter—Surrender of Privileges—Section 158 of the Constitution of 1902.—Where a gas company was vested by a resolution of a town council with a franchise for the use of the town streets for an indefinite period for the distribution of gas, an extension of the gas company’s charter by the State Corporation Commission has no effect on the company’s right to use the streets of the city, notwithstanding section 158 of the Constitution of 1902, providing that a corporation accepting an amendment or extension of its charter shall surrender any exemption from taxation, any nonrepealable feature of its charter, or any exclusive right or privilege.</p> <p>19. Corporations—Amendment or Extension of Charter—Surrender of Privileges—Section 158 of the Constitution of 1902.—Section 158 of the Constitution of 1902, providing that a corporation accepting an amendment or extension of its charter shall surrender any exemption from taxation, any nonrepealable feature of its charter, or any exclusive right or privilege, cannot be construed as interfering with any of the proprietary or contractual rights of corporations acquired prior to any amendments of their charters by the State Corporation Commission.</p>

<p>Error to a judgment of the Circuit Court of Halifax county. '</p>

<p>1. JUEY—Qualification of Juror—Criminal Law—Same Jury Sitting in Two Trials.—When jurors have been carefully examined on their voir dire and it has been shown that they are in every respect fair and impartial, and can give an accused a fair trial on the merits, they are not disqualified to sit by the fact that at another time and on entirely different evidence they have been compelled as jurors to convict him of an entirely different offense in no way connected with the charge under investigation.</p> <p>2. Juey—Same Jury Trying Accused for Two Different Offenses.— While the practice of using the same jury to try an accused for different offenses is not to bo commended, it is not error.</p> <p>3. Conspiracy—Subsequent Acts and Decla/rations of a Conspirator as Evidence Against a Coconspirator.—After the objects of a conspiracy have been accomplished, the subsequent acts and declarations of one conspirator cannot be given in evidence against a coconspirator. ■</p> <p>4. Criminal Law—New Trial—-Inadmissible Evidence—Prejudicial to Accused.—If the reception of inadmissible testimony may have prejudiced a defendant in a criminal presecution, a verdict against him should be set aside; but no such result would follow where the court can plainly see that he could not have been prejudiced by the reception, of such evidence.</p> <p>5. Criminal Law—New Trial—Inadmissible Evidence■—Prejudicial to Accused—Case at Bar.—In the instant case, an indictment for breaking and entering a railroad car, accused was recognized by one witness for the Commonwealth as the driver of a vehicle passing from the direction of the car in the direction of the house of the accused. A quantity of the stolen goods was found on the premises of the accused.</p> <p>Held: That the case against the accused was so fully made out that evidence to show that a reward had been offered for the arrest of an alleged accomplice of the accused could not have been pi’ejudicial to him, and if its admission was error it was harmless.</p> <p>6. Witnesses—Credibility—Question of Fact.—It is the peculiar province of the jury to determine the credibility of witnesses, and the weight to be given their testimony.</p>

<p>Error to a judgment of the Corporation Court of the city of Norfolk.</p>

<p>1. Burglary—Breaking.—Breaking, as an element of the crime oi burglary, may be either actual or constructive.</p> <p>2. Burglary—Breaking—Constructive Breaking.—There is a constructive breaking when an entrance is obtained by threat of violence, by fraud or conspiracy.</p> <p>3. Burglary—Breaking—Actual Breaking.—Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Merely pushing open a door, turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute this element of the crime.</p> <p>4. Burglary—Breaking-—Consent of Occupier.—A breaking, either actual or constructive, to support a conviction of burglary must have resulted in an entrance contrary to the will of the occupier of the house.</p> <p>5. Burglary—Breaking—Servant or Caretaker.—If a servant or a caretaker, or one having a bare charge (not possession) of the premises, although fully authorized to enter for purposes within the scope of the employment or trust, actually enters for the purpose of carrying out a previously formed design to commit a felony, he will be guilty of burglary.</p> <p>6. Burglary—Breaking—Entry with Consent of Owner—Case at Bar.—In the instant case, a prosecution for burglary, the right of the defendant to enter the premises as freely and unrestrictedly as either the owner or occupant was undisputed, and it follows that she did not “break” and enter the house, and therefore cannot be convicted of the alleged burglary.</p> <p>7. Appeal and Error—Burglary—“Breaking”^-Point Raised for First Time on Appeal.—In a prosecution for burglary, the “breaking,” as that term is used within the meaning of the • familiar definition of burglary, goes to the substance of the Commonwealth’s case, and the failure to raise the point that there was no “breaking” at an earlier stage does not deprive the accused of the right to take advantage of it on appeal.</p>

<p>1. Appeal and Error—Neiv Trial—Verdict Contrary to the Law and the Evidence.—Where the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant the finding of the jury. This restriction applies a fortiori to an appellate court. For in the appellate court there is superadded to the weight which must be given to the verdict of a jury fairly rendered, that of the opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial.</p> <p>2. Appeal and Error—New Trial—Verdict Contrary to the Law and the Evidence—Code of 1919, Section 6363.—Under Code of 1919, section 6363, the Supreme Court of Appeals will set aside a verdict on the ground that it is contrary to the evidence only in a case where the jury have plainly decided against the evidence, or without evidence.</p> <p>3. Intoxicating Liquors—Evidence Sufficient to Support Verdict— Case at Bar.—Upon a prosecution for violation of the prohibition law, it appeared that officers located a still in operation in a recent clearing, reached only by a road leading directly to and from the residence of the accused, that defendant’s pigs were feeding there, that automobiles made frequent trips thereto, and that frequent shipments of sugar and other supplies were also being made, and there was other evidence connecting defendant with the still.</p> <p>Held: That, the evidence presented a case, the determination of which was peculiarly within the province of a jury, and their verdict of guilty was conclusive upon appeal.</p>

<p>Error, to a judgment of the Hustings Court, Part II, of the city of Richmond.</p>

<p>1. Seduction—Promise of Marriage—Corroboration of Prosecutrix— Case at Ban-.—In corroboration of prosecutrix’s testimony that accused seduced her under promise of marriage, it appeared that for some months accused paid prosecutrix very marked and constant attention, being during that time her only beau, and visiting her about three times each week; that after she became pregnant he admitted to as many as four of the witnesses for the Commonwealth that he had promised to marry her before he had become intimate with her; and that after finding out her condition he had recommended to her that she resort to some medical means of destroying the unborn child.</p> <p>Held: That there was abundant corroborating testimony, not emanating from the mouth of the prosecutrix, to sustain a conviction.</p> <p>2. Seduction—Promise of Marriage—Corroboration of Prosecutrix— Admissions of Accused.—The admissions of the accused to witnesses for the Commonwealth that before becoming intimate with prosecutrix he had promised to marry her, if believed by the jury to have been made, constitute sufficient corroboration of prosecutrix in a prosecution for seduction under promise of marriage. •</p> <p>S. Seduction—Presumption of Chastity.—In a prosecution for seduction the chastity of prosecutrix is presumed under section 4410 of the Code of 1919.</p> <p>4. Seduction—Chastity of Prosecutrix—Question for Jury—Case at Bar.—In a prosecution for seduction the accused testified that one H. had admitted a previous intimacy with the prosecutrix, and that the prosecutrix had admitted the same thing. Both H. and the prosecutrix denied having made such admissions, and prosecutrix testified that she had never been intimate with any man except the accused; and there was much affirmative and uncontradicted evidence to show that her previous reputation for chastity was good.</p> <p>Held: That under this evidence the question of the previous chaste character of prosecutrix was for the jury and settled in her favor by their verdict of guilty.</p> <p>5. Seduction—Venue—Case at Bar.—The indictment in the instant case was found and the case tried in Fluvanna county. The evidence showed that both the accused and the prosecutrix resided in that jurisdiction. The accused testified that their acts of intercourse took place in her home, while she fixed the place as being near a road between her home and Antioch church, where they often went together.</p> <p>Held: That these facts created a strong presumption that the offense was committed in Fluvanna, and when to this presumption was added the certificate of the trial judge that according to his recollection “the venue of the offense was satisfactorily proved to have been in Fluvanna county,” the case should not be reversed on the ground of lack of proof of venue.</p> <p>6. Venue—Affidavits as to Proof of Venue—Affidavits not Made Part of the Bill of Exceptions—Quaere.—Whether affidavits of members of the bar present at the trial and of the court stenographer on the question of whether the venue of an offense had been proved at the trial, not made a part of the bill of exceptions, should be considered by the Supreme Court of Appeals is doubtful, notwithstanding agreement of counsel that the affidavits might be considered by that court.</p> <p>7. Venue—Time of Raising Question.—It seldom happens that there is any real merit in an exception based upon a failure to prove venue, unless the question has been developed and made the subject of serious inquiry before verdict.</p> <p>8. Seduction—Credibility of Witnesses—Question for the Jury— New Trial.—A man who will seduce a girl under promise of marriage, and then desert her, is quite capable of testifying falsely and endeavoring to procure false testimony from others. On the other hand, an unchaste woman who finds herself pregnant and attempts to lessen her shame by claiming that some man has seduced her under promise of marriage will generally swear falsely and seek to find corroboration of the falsehood in the testimony of others. In either case the credibility of the witnesses must be determined by the jury, and the courts, even if entertaining a different view, cannot in this particular interfere with the verdict.</p>

<p>1. Homicide—Indictment—Common-Law Form—Murder in the First Degree—Murder in Second Degree.—An indictment for murder in the common-law form, not expressly charging murder in the first degree, is good as an indictment for murder in the first degree, in Virginia, and even in the jurisdictions where it is held that such indictment is not good as an indictment for murder in the first degree, it will sustain a verdict and judgment for murder in the second degree.</p> <p>2. Criminal Law—Indictment and. Information—Bill of Particulars.—The accused has the right to have the Commonwealth file a bill of particulars in certain cases, but this right does not arise in all criminal cases, but only in those cases in which such a bill is necessary to supply the fault of generality or uncertainty in the averments of the indictment drawn in question, in stating the cause and nature of the accusation.</p> <p>3. Homicide—Indictment and Information—Bill of Particulars— Case at Bar.—In the instant case, a prosecution for homicide, there was no fault of generality or uncertainty in the averments in a count of the indictment, which expressly and distinctly charged the accused, as principal in the first degree, with a single act, namely, the throwing of a rock which gave deceased the mortal wound, and joining as defendants in the same count two others as participants in the alleged crime, who were also charged with the same act as principals in the first degree. 4. Homicide—Indictment and Information—Principal and Accessory.—An indictment for homicide charged accused jointly with others with doing an act (the throwing of a rock) which it was physically possible only for one of them to have done; hence it was contended for accused that the indictment in fact charged the accused with two offenses, that of committing the crime as principal in the first degree, and that of committing it as an accessory by aiding and abetting its commission.</p> <p>Held: That while it was true that these two offenses were charged, yet that is permissible in such a case, and creates no uncertainty in the averment with respect to what two offenses are thus charged.</p> <p>5. Jury—Drawing of Jury—Presence of Commissioner in Chancery. —The refusal of the court to quash the venire on the ground that the names of the veniremen were drawn in the presence of two citizens called upon by the clerk, without it appearing from the record that the presence of the commissioner in chancery could not be obtained, as required by statute, was not error, there being no evidence in the record tending to show that the irregularity in question probably caused injustice to the Commonwealth or to the accused, Acts 1920, p. 25 et seq.</p> <p>6. Homicide—Evidence—Previous Difficulty Between Deceased and Another.—In a prosecution for homicide, one of the principal issues in the case was whether or not accused committed the homicide in retaliation for the conduct of the deceased in a difficulty between deceased and an uncle of accused. There was ample evidence to sustain the jury in finding that this was the motive for the crime.</p> <p>Held: That the court committed no error in admitting, over the objection of the accused, evidence of the previous difficulty between deceased and the uncle of accused.</p> <p>7. Conspiracy—Declarations of Co-Conspirators—Declarations After the Event.—Declarations of a conspirator, after the object of the conspiracy had been accomplished, are not admissible against his co-conspirator.</p> <p>8. Conspiracy—Declarations of Co-Conspirátors—Declarations After the Event—Harmless É-rror.—The admission in evidence of a declaration of a co-conspirator after the homicide that if accused had not killed deceased, he would have done so, is harmless error, where there was other testimony that the co-conspirator had made another declaration to the same effect before the homicide, and where accused was found guilty only of murder in the second degree, indicating that the jury were not influenced hy such declarations.</p> <p>9. Witnesses-—Separation of Witnesses—Disobedience of Order.—A witness remaining in court, or listening to testimony' through a window, in violation of an order of separation, may, nevertheless, be examined, his conduct bearing only upon his credibility and subjecting him to being punished for contempt. The trial court- has no right to exclude such a witness from testifying, and no distinction is made in this respect between witnesses in rebuttal and other witnesses.</p> <p>10. Homicide— Evidence-—Declarations of Accomplices.—In a prose-cut-ion for homicide, relevant declarations of an accomplice, not made in the presence of accused but prior to the homicide, are admissible.</p> <p>11. Homicide—Evidence—Declarations of Deceased.—In a prosecution for homicide alleged to have been in retaliation for a prior difficulty between deceased and an uncle of accused, a declaration of deceased after the prior difficulty, “If I run now, will always have to run,” was either immaterial or had such a remote bearing on the homicide that its admission could not have been prejudicial to accused.</p> <p>12. Homicide—Evidence—Declarations-—Declarations Elicited on Cross-Examination by Accused.—An accused cannot complain of a declaration elicited on cross-examination on his behalf.</p> <p>13. Homicide — Instructions—Harmless Error—Error in Instructions as to Murder in the First Degree where Accused is Found Guilty of Murder in the Second Degree.—Error in instructions with respect to the subject of murder in the first degree, where the jury found the accused guilty only of murder in the second degree, is harmless, unless there are special circumstances indicating that the jury were influenced in their verdict by such error.</p> <p>14. Homicide—Instructions—Abstract Instructions—Intending Consequences of Act.—Where accused was charged with killing deceased with a rock, an instruction “that a man shall be taken to intend that which he does, or that which is the necessary consequence of his act,” is not open to objection as being a mere abstract proposition, and misleading.</p> <p>15. Homicide—Instructions—Provocation—Evidence to Support Instruction.—In a prosecution for homicide, the evidence tended to show that the attitude of deceased towards the accused at the time of the homicide was not seriously, if at all, threatening to accused, and was not the real provocation for the killing. The trial court gave the following instruction: “That a mortal wound given with a deadly instrument in the previous possession of the slayer, without any or upon very slight provocation, is prima facie murder, and throws upon the accused the necessity of proving extenuating circumstances.”</p> <p>Held: That there was evidence to support the instruction.</p> <p>16. Deadly Weapon—Questions of Law and Fact—Raising Question on Appeal.—Whether a weapon is a deadly weapon may under some circumstances become a question of law and fact to be determined by the jury under proper instructions. But in the case in judgment no issue was raised by the accused on this subject in the trial court; one of the instructions asked for by the accused contained the assumption that the weapon used, a rock, was a deadly weapon; and, the trial having proceeded with that assumption on both sides, as an uncontroverted fact, it is too late to raise that issue on appeal.</p> <p>17. Homicide — Instructions — Abstract Propositions — Justifiable Homicide.—Instructions upon the subject of justifiable homicide in the usual approved form, directly applicable to the case in view of the claim of accused that the killing was in self-defense are not open to objection as containing merely abstract propositions of law.</p> <p>18. Homicide—Instructions—Repetition.—There was no error in the refusal of instructions asked for by the accused, where they were fully covered by the instruction given.</p> <p>19. Homicide—Instructions—Flight.—In the instant case the Commonwealth introduced no evidence tending to show that accused fled to avoid arrest, the evidence merely showing that he had enlisted pursuant to a purpose formed before the homicide, and was at camp when he was arrested, and that his whereabouts were ascertained by the sheriff through a letter to his father, stating that he wanted to come home and stand trial, which letter was read to the jury.</p> <p>Held: That the refusal of the court to give an instruction that, “such flight” could not be considered as evidence against accused, if error, was harmless.</p> <p>20. Instructions—Weight of Evidence—Disregarding all Testimony of witness where he has Testified Falsely in one Respect.— An instruction that if the jury believed that witnesses, naming them, have knowingly testified untruthfully on any material matter, they might disregard the whole of their testi- . mony, would be improper, because of the singling out by name the witnesses.</p> <p>21. Instructions—Weight of Evidence—Disregarding all Testimony of Witness where he has Testified Falsely in one Respect.— If it is an admitted or uncontroverted fact, or there is clear and convincing evidence that a witness'has willfully testified untruthfully on any material matter, the trial court, in its discretion, may properly give an instruction, couched in general terms, to the effect that if the jury so believe, they are at liberty to disregard the whole of the witness’s testimony. But the trial court should in every case act with caution.</p> <p>22. Homicide—Instruction—“Equally” Susceptible of Two Interpretations.—In a prosecution for homicide, the jury were instructed that where a fact is “equally susceptible of two interpretations, one of which is consistent with the innocence of the accused,” the jury cannot arbitrarily adopt that interpretation which incriminates accused.</p> <p>Held: That the use of the word “equally” in such a connection, though proper in a civil case, was not proper in a criminal case. But as it in no way appeared that the verdict of the jury was influenced by such error, it must be regarded as harmless.</p> <p>23. Homicide—Evidence Sufficient to Support Verdict—Killing with Bock where Several were Engaged in Affray—Case at Bar.— In the instant case it was contended for accused that the testimony of all of the eyewitnesses of the occurrence left it undetermined who threw the fatal rock. While this was true so far as direct testimony was concerned, there was evidence showing the circumstances of the positions and attitude of the parties engaged in the affray, which tended to show that the accused struck the fatal blow with the rock, and there was testimony that the accused admitted that he did so.</p> <p>Held: That the trial court did not err in refusing to set aside the verdict as contrary to the law and the evidence.</p> <p>24. Homicide—Admission Coupled with Claim of Self-Defense— Question for Jury.—Where there is an admission by accused that he struck the fatal blow, coupled with a'claim on his part that he did so in self-defense, the jury are at liberty, if they feel the evidence warrants it, to accept the truth of a portion of such admission and to discard the rest.</p> <p>25. Appeal and Ekkok—Moot Question—Application for Bail.— Where a conviction of murder in the second degree is sustained on appeal, an assignment of error that the trial court erred in overruling the application of the accused for bail presents a purely moot question.</p>

<p>Error to a judgment of the Circuit Court of Norfolk county.</p> <p>The indictment in this case is for violation of the prohibition law, and is in the omnibus form prescribed by chapter 388 of the Acts of 1918. There was a trial by jury and a verdict and judgment accordingly, -finding the accused guilty and fixing his punishment at six months in jail and a fine of $500.</p>

<p>Error to a judgment of the Corporation Court of the city of Norfolk.</p>

<p>1. Judges—Criminal Liability of Judge.—It is well settled that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. But any judicial officer Who acts corruptly .is responsible criminally, whether he acts under the law or without the law.</p> <p>2. Justices op the Peace—Intoxicating Liquors—Criminal Liability of Justice—Justice Dispensing Liquor—Case at Bar.—In the instant ease, accused, a justice-of the peace, was charged with unlawfully dispensing and giving away ardent spirits. It appeared from the evidence that accused had asked several persons in his court room to taste certain liquor and give their opinion as to whether or not it was intoxicating.</p> <p>Held: That if the accused acted in the premises in the discharge of his duty as a justice of the peace, and in entire good faith, however, mistakenly, he was not criminally liable, notwithstanding section 4621, Code of 1919, providing the method of obtaining an analysis of the liquor.</p> <p>3. Intoxicating Liquors—Instructions—Partial View of the Evidence—Justice of the Peace—Dispensing Liquor.—Upon the trial of accused, a justice of the peace, for dispensing and giving away liquor, instructions, to find the accused guilty, predicated upon but a partial view of the evidence, in that they ignored the uncontroverted testimony of and for the accused to the effect that he acted in his official capacity and entirely in good faith, with the sole purpose of discharging what he conceived to be his duty as a justice of the peace, were erroneous.</p> <p>4. Intoxicating /Liquors—Instructions—Invasion of Province of Jury.—Upon a prosecution of a justice of the peace for dispensing and giving away liquors, the trial court gave the following oral instruction: “This appears to be a case of unintentional or inadvertent violation of the prohibition law; and if you find the defendant guilty, you must not impose a jail sentence, but only a fine.”</p> <p>Held: Reversible error, as an invasion of the province of the jury in that it expressed the opinion of the court that the case was one of violation of the prohibition law.</p>

<p>Error to a judgment of the Circuit Court of Northampton county.</p> <p>The opinion states the case.</p>

<p>Appeal and Error—New Trial—Evidence to Support Conviction of Illegal Manufacture of Ardent Spirits—Case at Bar.—Under Code of 1919, section 6363, the Supreme Court of Appeals is inhibited from setting aside a verdict approved by the trial court unless it appears from the evidence that such judgment is plainly wrong and without evidence to support it. In the instant case, the court held that to reverse the conviction of accused for the illegal manufacture of ardent spirits would be to disregard this provision.</p>

<p>Error to a judgment of the Corporation Court of the city of Buena Vista.</p>

<p>Error to a judgment of the Circuit Court of Orange county.</p>

<p>Error to a. judgment of the Corporation Court of the city of Norfolk.</p>

<p>Error to a judgment of the Circuit Court of Mathews county.</p>

<p>Error to a judgment of the Hustings Court of the city of Portsmouth.</p>

The verdict in this case found the accused guilty of murder in the second degree and fixed his punishment at ten years in the penitentiary. The judgment under review was entered accordingly. The deceased, a white man, named Will Rickman, was murdered on the night of Saturday, March 19, 1921, in a most brutal manner.

<p>1. Grand Jury—Presence of Commonwealth’s Attorney—Validity of Indictment.—Notwithstanding section 4864 of the Code of 1919, forbidding a Commonwealth’s attorney to go before a grand jury during their deliberations, the mere presence of the attorney for the Commonwealth in the grand jury room does not invalidate an indictment found at the time, if it satisfactorily appears that the accused was not prejudiced thereby.</p> <p>2. Grand Jury—Presence of Commonwealth’s Attorney—Validity of Indictment.—Any “going before the grand jury” by the Commonwealth’s attorney to advocate or influence the finding of an indictment would be a clear and substantial violation of section 4864 of the Code of 1919. But that section authorizes the Commonwealth’s attorney to “advise the foreman of the grand jury or any member or members thereof in relation to the discharge of their duty.” This advice ought always, as a matter of prudence and propriety, to be sought and given outside of the grand jury room. But where the Commonwealth’s attorney in response to a request by the grand jury goes to their room and gives them advice, without seeking to influence their finding, an indictment thereafter found by them is not thereby invalidated.</p> <p>3. Statutes—Codes—Adoption of Construction Given to a Statute by the Courts.—The revisors and the legislature by incorporating section 3988 of the Code of 1904 without change in the Code of 1919, section 4864, impliedly adopted the construction placed upon the former section by the Supreme Court of Appeals.</p> <p>4. Grand Jury—Presence of Commonwealth’s Attorney■—Validity of Indictment—Case at Bar.—In the instant case the Commonwealth’s attorney went before the grand jury, not voluntarily but at their request, not to advise whether they should find an indictment against accused, but to say whether they had a right to find a true bill as to some and not as to others whose names appeared in the draft of an indictment which had already been prepared by him, and advised them that they might strike out the names of two if they thought proper.</p> <p>Held: That this did not constitute vital and reversible error.</p> <p>5. Conspiracy—Attempt- to Murder—Mob—Witnesses—Questioning Accused as to why a Witness was not Present.—Upon the trial of accused for conspiracy and attempt to murder as a member of a mob, the sheriif of the county was permitted to testify that he had attempted to summon a brother of the accused and • had not been able to find him. The accused and his father were cross-examined as to the whereabouts of this brother. A witness for the Commonwealth, testified he had been with accused and his brother and other members of the mob shortly before the assault, and had restrained accused from shooting at a certain colored man.</p> <p>Held: That the brother of accused was a material witness, and the Commonwealth under the circumstances had the right to show that it had attempted to procure him as a witness, and to inquire of accused and his father whether they had anything to do with keeping him away from the trial, and that the fact that accused did not attempt to produce his brother was a matter for fair inference ando argument.</p> <p>6. Appeal and Error-—Error to Appear Affirmatively from the Record—Argument of Counsel.—It was assigned as error that in his argument to the jury the Commonwealth’s attorney alleged that defendant was responsible for the absence of a witness. There was nothing in the record to show that such an argument was either made or objected to, and the Supreme Court of Appeals cannot regard any alleged error which is not affirmatively shown by the record. If such an argument was made and was improper it could only be availed of upon appeal after having been excepted to and made a part of the record.</p> <p>7. Witnesses—Accomplices and Accessories—One Accomplice Corroborating Another.—If two or more accomplices are produced as witnesses, they are not permitted to corroborate each other, but the same rule is applied, and the same confirmation is required, as if there were, but one.</p> <p>8. Witnesses—Accomplices and Accessories—One Accomplice Corroborating Another—Instructions.—Where it was conceded that a conviction might be based upon the testimony of a single accomplice, without any corroboration, and the court instructed the jury that the evidence of an accomplice is to be received with great caution, and warned them of the danger of basing a verdict on the unsupported testimony of an accomplice, there was no error to the prejudice of the accused in the refusal of an instruction telling the jury that the evidence of one accomplice could not be deemed as corroborating the evidence of another, especially where there was corroboration in the testimony of witnesses who were not accomplices.</p> <p>9. Criminal Law—Presence of Accused—Alibi—Preponderance of Evidence.—Where the Commonwealth was trying accused upon the theory that he was present and actively participating in the unlawful acts of a mob at a jail, there was no burden of any sort on accused to show that he was not there until the Commonwealth had made a prima facie case against him. The burden was on the Commonwealth to show his presence beyond a reasonable doubt.</p> <p>10. Criminal Law—Presence of Accused—Alibi—Preponderance of Evidence—Instructions.—In a prosecution of a member of a mob for conspiracy, the court instructed the jury that the burden was upon the Commonwealth to make out its case against the accused to the exclusion of a reasonable doubt, “but where the accused relies upon or attempts to prove an alibi in his defense, the burden of proving the alibi rests upon him.”</p> <p>Held: That the proposition- contained in the quoted part of the instruction indicated that there must be a preponderance of evidence for the alibi, and would have constituted reversible error had it not been rendered harmless by the context, and by the language of other instructions in the case, which made it clear that, the burden was on the Commonwealth to prove beyond a reasonable doubt everything essential to the establishment of the charge, in- the indictment.</p> <p>11. Alibi—Whether a Defense—Instructions.—Alibi is regarded by some courts as an affirmative defense, but the better doctrine seems to be- that it is not a defense in the accurate meaning of the term', but a mere fact shown in rebuttal of the State’s evidence; and, consequently; the-evidence introduced to support it should be left to the jury uninfluenced by any charge from the court tending to place it upon a different footing from other evidence in the case or calculated to disparage and excite prejudice against it.</p> <p>12. Alibi—Burden of Proof—Reasonable Doubt.—Where the Com- ■ monwealth has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of- the jury a' reasonable doubt as to the guilt of the accused.</p> <p>13. Arguments op Counsel—Trial of a Member of a Mob—Attorney for the Commonwealth’s Description of the Mob.—On the trial of defendant for participation in an attempted lynching, the Commonwealth’s attorney in argument used the following language: “Are we to permit a crowd of moonshiners to come into our town, shoot it up, frighten the women and children, break into our jail and destroy the county’s property, and go unpunished?” There was but slight evidence to show that the members of the mob were moonshiners, but the evidence was sufficient to justify what else was said by the Commonwealth’s attorney, although the accused was not being tried for the things to which the language of the attorney for the Commonwealth referred, the essence of the appeal which the Commonwealth’s attorney made to the jury was right and proper.</p> <p>14. Arguments op Counsel—Latitude Allowed.—In both civil and criminal cases very considerable latitude is and must be allowed counsel in the argument of their cases.</p>

<p>Appeal and Error—Conflicting Evidence—Conclusiveness of Verdict. —Accused was convicted under the prohibition act, and the evidence for the prosecution was sufficient to establish his guilt. Accused introduced evidence tending to contradict all the incriminating circumstances established by the prosecution.</p> <p>Held: As the jury heard and saw all of the witnesses, and credited the evidence which so clearly indicated the guilt of the accused, their finding was conclusive.</p>

The accused was tried by jury, convicted of violating the prohibition law of the State, and the judgment under review was entered accordingly. There are but two assignments of error.

There was in this case a trial by jury, resulting in a verdict finding the accused guilty of selling ardent spirits, as charged in the indictment, and fixing his punishment at six months in jail and a fine of $500.00. The judgment under review was entered accordingly. There is no assignment of error which challenges the sufficiency of the evidence to support the verdict. Therefore, no statement of the facts touching the merits of the case is deemed necessary.

<p>Error to a judgment of the Circuit Court of Madison county.</p>

<p>1. Homicide—Malice—When Malice Implied—Case at Bar.—Prior to the shooting, deceased and the prisoner had been on good terms, but the prisoner was armed with a pistol which he said he put in his pocket that night for use “if anything should happen.” With this deadly weapon he shot the deceased in the back and killed him.</p> <p>Held: That from these facts the law implies malice, and the jury were warranted in finding that accused did not sustain the burden of rebutting the presumption thus arising against him.</p> <p>2. Homicide—Provocation—When Provocation Reduces Homicide to Manslaughter.—Provocation cannot be relied upon to reduce murder in the second degree to manslaughter, unless the provocation has so aroused the anger of the assailant as to temporarily affect his reason and self-control.</p> <p>S. Homicide—Provocation—When Provocation Reduces Homicide to Manslaughter—Case at Bar.—In the instant case defendant did not claim that the provocation so aroused his anger as to temporarily affect his reason, but expressly negatived such defense by claiming that he shot the deceased because he thought that action necessary to save his mother and himself.</p> <p>Held: That under the evidence, the jury might find defendant guilty of murder in the second degree.</p> <p>4. Homicide—Sufficiency of Provocation a Question for Jury.— When there is room upon the evidence for a difference of opinion, the question whether the alleged provocation sufficiently operated on the mind of the accused to repel the presumption of malice arising from the killing, and thus reduce the grade of the offense, is one for the jury to determine. In every such case it is the province of the court to instruct the jury as to the nature and extent of the provocation sufficient to reduce a homicide from murder to manslaughter, but it is the province of the jury to determine whether, under the facts of the particular case, the alleged provocation rather than a malicious purpose actuated the perpetrator.</p> <p>ñ. Homicide—Malice—Degrees of Homicide—Test of Murder is Malice.—Every malicious killing is murder either in the first or second degree—the former if deliberate and premeditated, and the latter if not.</p> <p>S. Homicide—Malice--Presumption of Malice and Premeditation— Homicide Prima Facie Murder in the Second Degree—Bu/rden of Proof.—There is a prima facie presumption of malice arising from the mere fact of a homicide, but there is no presumption therefrom of deliberation and premeditation. This is merely another way of stating the familiar rule of law that every homicide is prima facie murder in the second degree, and that the burden is on the accused to reduce, and on the Commonwealth to elevate, the grade of the offense.</p> <p>7. Homicide—Degree of Homicide—Reliance of Accused on Testimony of Commonwealth.—The accused may rely upon circumstances of extenuation appearing in the evidence produced by the Commonwealth to reduce his offense from murder in the second degree to manslaughter with the same effect as if brought out in evidence offered by him.</p> <p>8. Homicide—Malice—Whether Malice Exists for Jury—Grade of Offense for Jury.—Whether malice exists in a particular case is usually a question for the jury, and although in perfectly clear cases the courts have held that the evidence was not sufficient to show malice even where the jury had found to the contrary, yet malice is a subjective condition of mind, discoverable only by -words and conduct, and the significance of the words and conduct of an accused person, wherever there can be doubt about such significance, addresses itself peculiarly to the consideration of the jury, and the determination of the grade or degree of homicide is a question for the jury.</p> <p>9. Homicide—Questions of Law and Fact—Existence of Provocation Sufficiency of Provocation.—The sufficiency of the provocation to excuse or extenuate murder is generally a question of law. Whether such provocation existed in the particular case is a question of fact.</p> <p>10. Homicide—Sufficiency of Provocation—Adequate Provocation and ungovernable Passion Must Concur—Case at Bar.—Da. the instant case a violent attack by deceased upon the mother of accused was legal ground for anger upon his part, but in order to extenuate homicide to manslaughter, the provocation must, be such as to have actually excited strong passion, so as to have temporarily unsettled the reason. Both adequate provocation and ungovernable passion must concur; and in the instant case, although the adequate provocation was present,, neither the accused nor any other witness in the case testified to any overpowering passion on his part. The evidence which the accused himself adduced, if it did not preclude the question of ungovernable passion on his part entirely, certainly brought about such a state of facts that the question of whether the provocation produced the state of mind necessary to extenuate the killing to manslaughter clearly rested with the jury.</p>

<p>Error to a judgment of the Circuit Court of Rappahannock county.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke.</p>

<p>Error to a judgment of the Circuit Court of Campbell county.</p>

<p>Error to a judgment of the Circuit Court of Rockbridge county.</p>

<p>1. Intoxicating Liquors—Prohibition Act—Evidence Sufficient to Support Conviction.—In the instant case two police officers procured a search warrant to search the premises of accused for intoxicating liquors. The officers testified that they found several gallons of corn whiskey concealed in different places on the premises. Accused testified in his own behalf, denying all knowledge of the whiskey, but introduced no other evidence.</p> <p>Held: That, by section 28 of the prohibition law (Acts 1918, p. 599), the evidence was sufficient to support a conviction for violation of the prohibition law.</p> <p>2. Intoxicating Liquors—Possession as Prima Facie Evidence of Guilt—Others Residing on Premises—Section 28 of the Prohibition Law.—Under section 28 of the prohibition law (Acts 1918, p. 599), the finding of ardent spirits on the premises owned and occupied by the accused is prima facie evidence of the unlawful manufacturing, selling, keeping and storing for sale by accused, notwithstanding that others lived on the premises, renting rooms from accused.</p>

<p>Error to a judgment of the Circuit Court of Scott county.</p> <p>The accused was separately indicted, charged with the offense of unlawfully transporting ardent spirits in excess of one quart, to-wit: ten gallons, in, on and by means of a certain automobile. He was tried and convicted of this offense. The verdict of the jury fixed as his punishment a certain fine and confinement in the county jail, and the judgment under review was entered accordingly:</p> <p>The testimony for the Commonwealth, so far as material, was to the following effect:</p> <p>A county policeman having received information that “a car was coming up the pike,” deputized a number of men to assist him in holding it up and searching it for liquor,1 but had no warrant authorizing him to do so. They subsequently saw an automobile coming along the public road with two men in it—the driver, named Wilson, and the accused. Whereupon, the policeman hailed the occupants of the car, commanding them to “surrender,” get out and let him search the car. Wilson asked the policeman if he had a warrant to search the car. The policeman replied that he did not; but said, “We have you surrounded; surrender and I will treat you nice.” Wilson said, “No.” The policeman said: “I will treat you nice. Get out and let me search the car.” Wilson said: “That may be nice for you, but it will be hell for us.” The policeman then stepped up to the .car and saw that both men in the car had pistols. Wilson got his pistol from his side, and when.he pulled it from under his coat the policeman caught hold of his wrist. Thereupon Wilson said: “I would rather have my brains shot out than my mother know this.” The accused had a pistol in his hand. Wilson told the policeman not to enter the car. The policeman again asked to be allowed to search the car. Wilson then turned towards the accused and said: “What about it, old man ?” And the accused said: “Hell, no!” The officers held up the car for nearly an hour. The curtains were up. The policeman and two of his deputies testified that they saw “two kegs and what looked like another keg in the car.” The policeman testified that when he stepped up to the car he “smelt liquor—it smelled like corn whiskey.” Two of the deputies testified that they “smelled liquor in the automobile,” and one of these said that it “smelled like good liquor.” The testimony does not show that the accused said anything except his reply above stated to the question of Wilson addressed to him above mentioned. After the parley and the refusal of Wilson and the' accused to let the car be searched without a search warrant, the car was allowed to proceed on its way.</p> <p>The accused, testifying in his own defense, stated that he was not the owner of the car; that Wilson was the owner of it; that he (the accused) was “only a passenger in it.” That there were no kegs in the car or liquor in it that he knew of. That he did not know any of the parties who held them up. That he thought there were nine of the men engaged in the holdup, with four shotguns and five pistols. That “they were strangers and we did not know what they meant. We asked them if they had any authority, and they said they did not. They wanted to search the automobile, so they said, and’ Mr. Wilson told them that if they had a warrant they could; but if they did not have a warrant they could not. I had a little bit of money on me and Mr. Wilson said he had a little, too. There was considerable talking and some wrangling, but finally we were permitted to go on.” On cross-examination he further stated: “* * * I did not know what they meant. I understood them to say they wanted to search the car, but they were strangers and armed, and I did not know their purpose. I was just a passenger in the car— got in at Castlewood. It was my business where I had been and what I was doing.”</p> <p>Several witnesses for the defense who had as good opportunities to see the kegs in the car as the accused had, so far as disclosed by the evidence, testified that they did not see any kegs in the car.</p> <p>In the brief of the Attorney General and his two assistants, this is said: “* * * while we will not confess error, we frankly admit that there is doubt in our minds whether the evidence substantiates the charge of transporting whiskey.”</p>

The accused were jointly indicted. The indictment contains only one count, and in that one count charges that both of the accused, at a certain time and place stated, did feloniously break and enter a certain railroad car, the number, etc., of which is stated, “then and there in the lawful custody and control” of a certain railroad company designated, “with the intent to commit larceny thereinand further charges both of the accused with actual larceny, at the same time and…

<p>Error to a judgment of the Hustings Court of the city of Portsmouth.</p>

<p>1. Witnesses—Competency—Children—No Fixed Age—Discretion of Trial Court—Reversal on Appeal.—There is no fixed age at which a child must have arrived in order to be competent as a witness. Of course, no one would think of calling a child two or three years of age as a witness in a case, but the whole, question of competency must be left largely to the discretion of the trial court, and its judgment will not be reversed except for manifest error. He has the opportunity of seeing the child and its demeanor on the stand, which cannot be photographed in the record, and unless what is in the record clearly shows that he has committed error, his action will not be reversed.</p> <p>2. Witnesses—Competency—Children.—Though a child may be too young to be convicted of perjury, this is not decisive of its competency as a witness.</p> <p>3. Witnesses—Competency—Children—General Rule.—In order to be competent as a witness, the child must have sufficient mental capacity to observe the data about which it has testified and record it in mind, and thereafter understand questions put to it and be able to give intelligent answers. There must also be a sense of moral responsibility, at least to the extent of a consciousness of a duty to speak the truth.</p> <p>4. Witnesses—Competency—Children—Child of Six.—In the instant case, a child nearly six years of age showed upon her examination In chief and on her voir dire that she possessed more than average intelligence, and the same appeared from her answers upon cross-examination to questions which could not have been anticipated and upon which she could not have been coached. Feld: That the trial judge made no mistake in holding that the child was of sufficient mental capacity to testify as a witness.</p> <p>5. Criminal .Law—New Trial—Conflicting Evidence—Evidence Sufficient to Sustain Conviction.—Upon the trial of accused for assault upon a little girl, the little girl and her brother proved the assault and the identity of accused. The testimony of the little girl as to the injury was apparently corroborated by the testimony of her mother and that of the doctor who attended her.</p> <p>Held: That the evidence was sufficient to sustain a conviction, notwithstanding evidence as to the good character of the accused and as to an alibi.</p> <p>6. Appeal and Eeeoe—Weight to be Given to Finding of Lower Court.—Upon a hearing before a judge without a jury, the finding of the judge upon the credibility of witnesses and the weight to be given to their testimony stands on the same footing as the verdict of a jury.</p>

There was in this case a trial by jury, resulting in a verdict finding the accused guilty of selling ardent spirits, as charged in the indictment, and fixing his punishment at six months in jail and a fine of $500.00. The judgment under review was entered accordingly. There is no assignment of error which challenges the sufficiency of the evidence to support the verdict.

<p>Error to a judgment of the Circuit Court of Hanover county.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke.</p>

There was in this'case a trial by jury, resulting in a, verdict finding the accused guilty of selling ardent spirits as charged in the indictment and fixing his punishment at six months in jail and a fine of $500.00. The judgment under review was entered accordingly. There is no assignment of error which challenges the sufficiency of the evidence to support the verdict. Therefore, no statement of the facts touching the merits of the case is deemed necessary.

<p>1. Disorderly Houses—Evidence, Sufficient to Show that House was one of III Fame—Case at Bar.—In the instant case, a prosecution under Code of 1919, section 4548, the arrangement of the house and its furnishings, the large number of alleged guests whose names appeared on the register of accused, the method of keeping the register, together with accused’s explanation of that method, the overtures which she and the other woman in the house made to four witnesses who tstified, her declarations and admissions to them as to her ability to procure more women if desired, and her assurances that there would be no danger of detection, made it perfectly plain that accused was then, and had been for some time prior thereto, plying her nefarious trade on a large scale.</p> <p>Held: That this evidence was sufficient to establish the fact that the house m question was a bawdyhouse or brothel.</p> <p>2. Disorderly Houses—Code of 1919, Section 4548—Whether Proof of General Reputation as to the Character of the House is Necessary to Sustain a Conviction.—Code of 1919, section 4548, provides that: “If any person keep a house of ill fame, resorted to for the purpose of prostitution or lewdness, he shall be confined in jail not exceeding one year and fined not exceeding two hundred dollars; and, in a prosecution for this offense, the general character of such house may be proved.” Defendant contended that the Commonwealth must prove both that the house in question was in fact a bawdyhouse and that it had a general reputation as such.</p> <p>Held: That although some apparent support of this contention might be found in the fact that the statute, after using the expression “house of ill fame,” also adds the words, “resorted to for purposes of prostitution or lewdness,” yet this argument is repelled both by the language of the statute as a Whole, and by the prevailing current of authority, and it is not necessary in a prosecution under the statute to prove that the house had a general reputation as a bawdyhouse, where it is shown that it was in fact such a house.</p> <p>3- Words and Phrases—“General Character.”—The words “general character,” as used in section 4548, Code of 1919, allowing the general character of the house to be shown in a prosecution for keeping a house of ill fame, were evidently used in the sense of “general reputation.”</p> <p>4. Disorderly Houses—Proof tha,t the House was in Fact of Bad Character.—Before there can be a conviction for keeping a house of ill fame there must be proof that it was in fact a house of bad character; that is to say, a house actually resorted to for immoral purposes.</p> <p>5. Words and Phrases—“Bawdyhouse”—“House of 111 Fame.”— “Bawdyhouse” and “house of ill fame,” as used in law, are convertible- and synonymous terms.</p> <p>6. Disorderly Houses—Proof of General Reputation in Absence of Statute.—Upon the charge of keeping a disorderly house, according to much respectable authority, no proof of general reputation of the house is admissible unless expressly made so by statute.</p>