Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1838-07-26
IL KfECsAs..
From the Richmond Ea7uirer.
DECISIONS OF TIE
GENERAL COURT OF NA.--JuNn Term 1898

pcrior Courl Of Harrison county, ion an assault aud
! battery upon William Nay. The indictment was
found upon tie information oil William Nay of
snd county OF Harrison, lahofer, sworn and sent 10
the gfauu iny, IN give evidence, Al his own request
as prosecutor Oh the TART OF the Commonwealth. -
After pleading rol guilty to the Indictment, the de
endlats obtained a rule the prosecutor, 10 show
cause why M should not give security ler costs, up
ON an affidavit by oil the said defendants stating
that the said prosecutor did not cal personal
estate sufficient To pay the defendants thcl costs
should they be acquitted that lie unmarried,
and obtained support by occasional daily labor in
! the nejghbolhood Tic rule being returned cxcCu.
ted, the defendants moved the court 10 make the
same absolute, useless the prosecutor proved 10 the
satisfaction Of the count that nc had estate sufficient
to pay the costs Of the defendants in the event Of
then recovering judgment Tor them, OF should give
security tor the payment OF such costs, The Attor
ney for the Commonwealth offered to show cause
against the rule, that the assault aud battery eharc
ed against the defendants was OF highly aggravated
nature Nhoteapon, The couIt, upon tie consent
| oil tie defendants adjourned to the General Court,
Tor novelty and difficulty, the following questons--l
w neither under tho sixty sixth section vi the act
regulating criminal proceedings against free PERSONS
| !, Resved Code, page 6l5, the Insolvency or ina.
blliy OF the prosecutor 10 pay the costs is OF itself
sufficient cause Tor compelling the prosecutor to
find security for payment OF the costs and upon
failure to do So tor dlsmissng the indictment with
costs >. Whether the circumstances connected
with the charge, showing ii 10 be aggravated OF 9th
etwlse, ought TO be examined by the court III order
TO determine whether ii is such ease as the public
interest should require to be prosecuted, although
the prosecutor may be unable TO pay the costs
The General Court decided, IN answer 10 thequcs-
tons adioumod-
That under the Goth section of the act referred TO,
If the prosecutor be nsovon unable to pay costs,
that Is, ordinarily, good cause for ruling him find
security for such payment but that, IN the exercise
OF this authority. the court ought To afe regard
10 the character ol the prosecution aud IT, III lis
opinion public justice requires that the prosecution
should proceed, the court my, III the exercise Of
sound discretion, refuse to dismiss the Indictment,
although the prosecutor be nsoyent, and security
for costs be not given and that it would be good
ground for refusing to dismiss an indictment, al
though the prosecutor be insoycnt ii, in HE opinion
OF the copit, ii would oJGco have directed prose-
cut!on to be instituted.
Conference.-The IS. H'iliun II. La@llrL
In the Crcmt Superior Court Of Amherst coun-
Y, at September term, 1881, an indictment was
found against the defendant, in the following words:
=" Amherst county, Superior Coait Of Law and
ChneeIy, 10 wit-Ile grand Jurors empannellcd
and sworn At the September term ofhe said court,
IN the year al our Lord, 1891, upon hcif oath PIE
sent, that William NJ. Lambert Late OF the county
OF Amherst, llboref with force and arms, III the
y aforesaid aud within the jurisdiction OF he sad
court. on the inst day Of September, in the year OF
our Lord, 1884, mllulls aud malicousy, and by pre-
pOus agreemcut with Il certain William NJ. Davis,
did fight with HIM, the said Davis, duel with ps-
tolls said weapons with he 4eiich did fight as alore
said bel . such as tae probable consequence from
which mph be the death of the said ambon or OF the
said Davis which said duel fouoht with the weapons
aforesaid and at the time AMI place aforesaid was
an evil example TO Others and jr OF the statute in
such cases made aud provided and against the peace
and dignity of the Commonwealth"
The defendant moved the Court to al,ash the in
die tmen for the following, among other reasons APP
parent ON the face thereof: | Because the defendant
docs not correctly describe the court by its usual
denominations and conscgucptly il does not suiI-
ciently appear from the said indictment itself that
il WAS found BY Grand Jury impanncled in this
court ,. because it IS not charged in the said indict
mcut. that the pistols mentioned therein wore load
ed. But it appearing from the records ofthc court,
that the said grand iHry VAS inpamncled and sworn
lor the said Circuit Count, and that the said indict-
ment was regularly and legally found by them, and
that the came was duly entered OF record, the count
oycuncd tie motion 70 qnash the mhctment-
Whor,u upon the defendant hcd general demurrer
10 the Indictment, aud the Attorney for the Com
monWedIth joinrd therein aud the court, With The
assent Of the defendant, adjourned to the General
Court the following questions: /, Were the defects
alleged, Of any others apparent upon the lace OF the
Indictment, sufficient TO qaash the indictment :.
II not sufficient 70 quash, were the detects alleged or
appearing fatal on demurrer! ;. What judgment
should be rendered on said demurrer!
The cause was argued IN the General Court by the
Attorney General for the Commonwealth, and T.
L. Gfauan for the defendant,
Alien, J. delivered the opinion Of the court--lt is
unnecessary TO consider the FIRST question al onrncd
The Circuit Court, having orcfruied tie lu3il1h to
quash, has decided that question, and II any error
had been committed, 1t could only be corrected by