Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1838-07-26


l6th section Of the act, Is il forbidden place; and
the Court cannot pronounce judgement on such Il
finding, any more than II the Jury had found the de-
iandant guilty of play ing nj the private house oil or
II. Aud II II be place of public resort. then he u,
onuilsd TO an aequittal, under the express finding
OF Tie Jury, that he was not gully oil playing NJ
place of public resort. Tho Whole verdict Of the
lufy must be taken together; aud, SO considered,
mat verdict Is merely nupatofy, OF II nsceitains
beyond all question, that whatever house OF en-.
tcrainment may be, il is aoi place OF public re
sott.
L9siar, J delivered the opinion of the Court The
Count IS Of opinlon, thn the authority of WORKMAN
VS.. Commonwealth is decisive IN sustaining the Sc
eoad count IN the indictment in the present case
The case felcned to has decided (n conformity TO
The 18th section OF the gaming law that house OF
public result whether licensed not, is a tavern,
and consequently is public place within the terms
OF the 9th section; aud that ii is sufficient that the
M etment should, IN the terms Of the 10Th section,
rhatee the gaming To have been committed IN 4
house OF public resort and such charge Is as correct
as laid IN the words OF the hh section.
In the case now under considerations, the indiet=
mcn CHARGES ia hike manner IN the words Used by
the Legislature ia the 10th section that the gaming
was perponatcd IN "a house Of entertainment; !" and
II would seem neccssaril, to be brought, by tho le=
g"tWc definition OF u public place, within the
scope OF the htth section, as VAS the case IN Wor-
thamHs Gommonw enllh.
Whatever complaint may be made OF the vague
ness OF tho expression every house Of entertain
ment,' aud the extent 10 which that expression may
be carried, II was fully competent 10 the Legislative
authority 10 adopt those terms IN the widest con
uuetinn; and II such appeared to be the design of
tho Legislature, the Courts woudbc hound to con-
tptm 10 il.
There is 40 occasion, however, inr tho appfehcn-
sion that The words " a house Of entertainment can
be liable 10 any dangerous IueonyCrient latitude
of construction. "a house of p,iyate cutottain.
menl' IS an expression frequent, used III the acts
OF Assembly. and though the wora pritaic n used,
vet Ion many purposes such houses regarded as
Pubtte. The meaning which the Legislature al
taches 10 these terms Subscription not liable
To mlseonsnucion. Nor does the expression seem
more ltbla To misconstluotIon when the word phi
iatt IS dropped, and tho houso oil entertainment IS
declared 10 be = tavern.
1t Is objected Ill this case, that the defendant hay
ing been acquitted upon the inst count in the ndict.
tnent, winch charged the gaming 10 have been com.
mtel AT the house OF John Nicely the Same be
ne then and there place OF pubic resort" II Il APP
parent thai the house OF entertainment where the do
PENDANT, under the second count, was convicted OF
playing, could not have been public place. This
objection assumes that all the offences charged IN
the indictment must necessarily have been the same,
aud that no evidence WAS offered but Of one aud the
same offence. This. the Court thinks is contrary To
the ntcndment oi the lazy, by which each offence in
each count al the indictment is to be regarded II.
Hcpefalc, DISTINCT offence. There IA nothing IN this
record to show llHt that was the case.
The count is ol opinion, that there no ertof IN the
proceedings, aud therefore refuses the wit Of error
prayed tor
Commonwealth as. Si3oeg FsHS. Adjourned case
from the Circuit superior Court ul Law an8 Chan
Gerry for the county of liomieo aud city of Rich
mond.
The cause was argued herr by the Attorney Gen.
cral for the Commonwealth and Robert q. Scott ot
the defendant
The facts of the case are fully stated in the opinion
OF The General Court, which WIS delivered by
UpShaf J. The prisoner, WHO'S free negro, was
indicted for assault White man. with intent to
murder him an oicnce punishable with death. The
jury npannelIed to Try him, having heard the eri-
deuce, retired To consider thereof &altciwars return
ed into and declared that they could not agree in
4 verdict. TREY wcro adjourned over in the usual
manner, until the next day and having the case a
gain committed To them, again returned into court
after some time, and declared thai they could not
agree. They were again adjourned ~ before aud 50
from day day for nno days. On the 9th day. tie jury
bong still unable TO agree, one oi the Jurors add
dressed To the court and counsel engaged IN the
4 letter in the following words I" Richmond, @1th
May, less. To the Hon. judge !, =, N.ah"az,
and the counsel IN tho case Of the Commonwealth,
rs FEELS. Gentlemen herewith Send you ceitIl-
cate ilom Dr.. Rohannau, and IA addition 10 that,
would state tha ! am boarding with my family, and
that owlngto the fact lhat room is adjoining the
house wberc va boald, ia another tenement, tie
family ale unable 10 give mine thataucntion required
ny nfGt~aitD. i ne only persons now staying WIN
NY wife, OF thai could without much delay be had
two females, and were her accauchemcnt to take
place At night the delay IN procuring proper atten-
dance, fear, vii be the cause Of some disaster J
deem it unnecessary 10 say more, my situation Is
one which every man of family mns appreclatc.'
Accompany this letter was the following ccfiiii-
cate from Dr. Bohannan: g" ! hereby Gently that
Mrs. IL Che wife of the juror IS m0menHy ex-
peeted TO be confined, and that her situation IS such
as 10 require the hnd attentions OF her husband
This certificate duly sworn 10, as was also the
above mentioned letter Of the Juror. At the sane
time the following affidavit oil another Juror PIE
scented toiho court: City Of Richmond, to wit;
Personally appeared before me, l.. Darlington,
magistrate in and Tor the city aforesaid, Lewis llll
one Of the jurors IN the case Of the Commonwealth
fclls, aud made oath thai his health IS suffering
from Conlncmeni, aud he apprchfnds serious eonsc-
qucnc"s Viii cnsuc, II longer confined The couH
expressed the opinion that IL had power IN this state
of things, TO direct Juror 10 be Withdrawn, aud 10
discharge the rest Of the jury, which was accof-
DINGHY done. The Attorney for the Commonwealth
then moved the court to award new wit OF tchHt
Eiria5, and 10 impannel new Jmy for the trial
OF tie prisoner. This the prisoner opposed, aud
moved Tor ms discharge, on tie ground that
the discharge Of the jury aforesaid entitled
him thereto. The coult not being advised what
Judgment TO render in the premises, with the
consent OF the prisoner adjourned 10 TINS court
The following questions iOf novelty and dllhCulty
/. Whether the court possesses the power aud au-
tholity discharge jury after they have been I'M
panucIlcd aud sworn, upon being satisfied there Is
probability Of the jury agreeing IN verdict! =
Whether, ifhe court does not IN general possess the
power before spoken Of it is right and proper to dis
charge the prisoner taking into consideration the
fvcs and circumstances which existed in this case
1isctospd hy the record