Volume 9 — Leigh's Virginia Reports

<p>Criminal Law — Insolvency of Prosecutor— Dismissal of Indictment.* — Under the 66th section of the act regulating criminal proceedings against free persons, 1 Kev. Code, ch. 169, the prosecutor’s in'solvency or inability to pay costs is, ordinarily, good cause for ruling him to And security for such payment; hut if, in the opinion of the court, public justice reuuires that theprosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor he insolvent, and security for costs he not given.</p> <p>Same — Same—Same.—An indictment will not he dismissed, though the prosecutor he insolvent, if the court would ex officio have directed a prosecution to he instituted.</p>

<p>In the circuit superiour court of law and chancery for Amherst county, at September term 1834, an indictment was found against the defendant, in the following words: “Amherst county, superiour court of law and chancery, to wit: The grand jurors impanelled and sworn at the September term of the said court in the year of our lord 1834, upon their oath present, that William M. Lambert, late of the county of Amherst, labourer, with force and arms, in the county aforesaid and within the j urisdiction of the said court, on the first *day of September in the year of our lord 1834, wilfully and maliciously, and by previous agreement with a certain William M. Davis, did fight with him the said Davis a duel with pistols, said weapons with which he did fight as aforesaid, being such as the probable consequence from which might be the death of the said Lambert or of the said Davis, which said duel, fought with the weapons aforesaid, and at the time and place aforesaid, was an evil example to others, and form of the statute in such case made and provided, and against the peace and dignity of the commonwealth.”</p> <p>The defendant moved the court to quash the indictment, for the following among other reasons apparent on the face thereof : 1. Because the indictment does not correctly describe the court by its usual denomination, and consequently it does not sufficiently appear from the said indictment itself, that it was found by a grand jury impanelled in this court. 2. Because it is not charged in the said indictment, that the pistols mentioned therein were loaded. But “it appearing from the records of the court, that the said grand jury was impanelled and sworn for the said circuit court, and that the said indictment was regularly and legally found by them, and that the same was duly entered of record,” the court overruled the motion to quash. The defendant then filed a general demurrer to the indictment, and the attorney for the commonwealth joined therein : whereupon the court, with the assent of the defendant, adjourned to the general court the following questions : 1. Were the defects alleged, or any others apparent upon the face of the indictment, sufficient to quash the indictment ? 2. If not sufficient to quash, were the defects alleged or appearing, fatal on demurrer ? 3. What judgment should be rendered on said demurrer ?</p>

<p>Gaming: — Indictment—Allegation as to Place.* — An indictment charging the defendant with unlawful gamingat thehouse of J. N. the samebeingahouse of entertainment, is sufficient.</p>

Sidney Fells, a free man of colour, was indicted in the circuit superiour court of law and chancery for the county of Henrico and city of Richmond, for an assault upon William R. Geddy, a free white person, with intent to kill him ; an offence which, by the statute passed March 15, 1832 (Sess. Acts of 1831-2, ch. 22, § 6 ; Supplem. to Rev. Code, p. 247,) is made punishable with death.

The defendant Thomas J. Coe was indicted in the circuit superiour court of law and chancery for Wood county, for selling ardent spirits by retail, “to be drunk at the place where sold,” without having a license therefor.

Writ of error to a judgment of the circuit superiour court of law and chancery for ■Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for stealing an iron gray mare of the value of 60 dollars, the property of Gewis Bench. The accused being found guilty by the jury, was sentenced to imprisonment for five years in the penitentiary.

Writ of error to a judgment of the circuit superiour court of lav? and chancery for Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for counterfeiting and passing base coin. The indictment contained three counts.

Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Washington county. *The petitioner, Shadrack . Brown, was indicted and tried at October term 1838, for horsestealing.

Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Chesterfield county. The petitioner, being indicted at October term 1838 for larceny, was tried, convicted, and sentenced to imprisonment for two years in the penitentiary.

<p>Criminal Law — Case Adjourned — What Record Must Show. — The record of a case adjourned by a circuit court to the general court must show that such adjournment was with the consent of the accused.</p>

<p>Gaming — Racefield.*—'What shall be deemed a race-field, within the meaning of the act to prevent unlawful gaming.</p>

<p>Criminal Law — Grand Juror a mil Owner* 1' — Sufficiency of Plea. — To indictment in Petersburg- circuit court, defendant pleafls, 1. that one of the grand jury which found the same, was, at the time he was summoned and sworn, the owner of a water grist mill situated in Chesterfield ; 2. that one of the grand jury was, at the time of finding the indictment, the owner of a water grist mill (without saying where the mill is situated). On demurrer to the pleas, Hbbd, neither of them is sufficient.</p> <p>Jurors — Competency—Preconceived Opinions† — Case at Bar. — On a trial for murder, two jurors are severally examined on yoir dire. 1. One states, that he was not present at the examination of the prisoner before the hustings court, and has heard no statement of the evidence from any witness or any person who was present; that he has heard the case spoken of in the town, and rumours in regard to its circumstances, upon which he has expressed no opinion, though he believes those rumours to be true, and if they should turn out upon the trial to be true, he has a decided opinion in regard to the case ; but he feels no prejudice, and is satisfied he shall be able to decide the case upon the evidence which may be given in, uninfluenced by the rumours he has heard ; that the opinion he had formed was, that if the prisoner had stabbed the deceased under the circumstances which he had heard, he ought to be punished. 2. The other juror slates, that he has made up no decided opinion ; that he has heard a part of the evidence of one witness, and formed an impression, and if the balance of the testimony should run in that way, that impression would be confirmed ; that as far as the evidence went, he has a decided opinion, if the rest should not run against it; but that he has no prejudice, has not expressed any opinion, and is prepared to decide the case according to the evidence which may be given in, uninfluenced by the portion of evidence he has heard. Help, both the jurors are competent.</p>

<p>Criminal Law — Surveyor of Road — When Liable to Prosecution. — 'Though the assignment of tithables to work on a public road has been made, not by the county court itself, but by one of the justices, designated for that purpose by the court, and has not been returned to the court or ratified by it, yet if the tithables so assigned do not refuse to work on the road, the surveyor is indictable for failing to keep the same in repair.</p>

Isham Maile was indicted in the circuit superiour court of Chesterfield, for the murder of Archer Maile.

<p>Criminal Law — Statute Suppressing Circulation of In cendiary Publications — Construction.—To sustain a prosecution for the ofience created by the iir.st section of tile act to suppress tbe circulation of incendiary publications, passed March 23,1836 (Acts of 1885-6, ch. 66,) the person accused must be a member or agent of an abolition or antislavery society.</p> <p>Felonies — Informations.*—A felony cannot be prosecuted by Information.</p>

<p>Criminal Law — Selling Goods without License — Information.* — Upon presentment and information in a circuit court, judgment given for the forfeiture inflicted hy the second section of the act passed February 24, 1823, for the offence of selling goods, wares and merchandise without a license.</p>

<p>Criminal Law — Stabbing—Indictment—Allegations.*— An indictment charging that prisoner, “ at the county and within the jurisdiction of the court, feloniously and maliciously did stab one P. T. with intention to maim &c. and kill him,” will not be quashed, upon objection that it does not allege any assault, striking or wounding, nor that P. T. was within the county or jurisdiction, nor that the intent was felonious or malicious.</p>

Writ of error to a judgment of the circuit superiour court of law and chancery for Wythe county.

Richard C. Gwatkin was indicted in the circuit superiour court of Greenbrier, for the murder of Erederick M. Pitman. After ineffectual attempts to impanel a jury in that county, the cause was transferred to the circuit superiour court of Rockbridge ; where, at September term 1839, the trial was had.

In the circuit superiour court of law arid chancery for the county of Henrico and city of Richmond, at the term held in October 1839 for the trial of criminal causes, the grand jury presented “ an indictment against William H. Page for forgery, a true bill.” The indictment thus described as an indictment for forgery contained*six counts.