Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1838-07-20
DECISIONS Of THE

\ GENERAL COURT OF VA-Jcsr TERM 1888
4mHoarsaAh VS. Thomas Hill, Jr, Elias .dcfntire and
Joseph Tetriek.
Til. defendants were indicted in the Circuit Superior
our. Of Harrison county, for assault and battery
bon William .rau The indictment was found "upon
Be information of EPdtiom Nay Of said county Of Har
TOn. abore and sent 10 The grand jury, TO give
tsnce his request prosecutor the part Of
he Common wealth After pleading not guilty 10 the
dicment, the defendants obtained rule the prose-
r;o show why he should not give security for
rsts, upon affidavit by Of the said defendants,
ang that the said prosecutor did not own real or per-
NAL estate sufficient 10 pay the defendants their costs,
could they be acquitted thathe unmarried and OBJ.
ned support by occasional daily labor in the neigh
hood The rule being returned executed, the defend
r moved the court 10 make the same absolute unless
prosecutor proved 10 the satisfaction of the court,
"a, he had estate sufficient to pay the costs of the de-
Pn5,nis IN the event Of their recovering judgment
nen or should give security for the payment Of such
osss, The Attorney for the Common ealth offered 10
ow against the rule, that the assault and battery
ged against the defendants Of highly aggravated
1e: Whereupon, the court, with the consent Of the
sndants adjourned 10 the General Court for novelty
l'' difficulty, the following quesuons-l. Whether,
1er The slxtysixth section of the act regulating cr
nal proceedings against free persons, Revised Code,
Pee Clo, the insolvency or inability OF the prosecu.
r. 10 pay the is of itself sufficient cause for
$1pellng the prosecutor 10 find security for pay.
H.! Of the COSTS and upon failure to do So for dis.
fang the indictment with costs? 9 Whether the
ccms,ances connected with the charge, showing il 10
aggravated or otherwise, ought to be examined by the
ou: N order TO determine whether il is such case as
he public interest should require TO be prosecuted, al.
oOsh he prosecutor be unable pay the costs?
lie Genera! Court decided, in answer to the questions
:nurned-
That under the Goth section Of the act referred TO- If
s prosecutor be nsovent unable 10 pay costs that
ordinarily, good cause for ruling him to find security
.lch payment; but that in the exercise Of this aulho
The court ought to have regard TO the character Of
prosecutions; and IT, in its opinion, public justice re-
eslha' The prosecution should proceed the court may
'he exercise OF a sound discretion, refuse to dismiss
Indictment although The prosecutor be insolvent and
eeuy Tor costs be not given; and that it would be
Eo'n gfHand Tor refusing 10 dismiss indictment, al
'e prosecutor be insolvent, it, in the opinion Of
be instituted
4 Commonwealth v Wiliam w. LAMBERT
IA .ne circuit Superior Court Of amherst county, at
Pemoei lefm 1914, an indictment was found against
ue"oshl' IN Inc following words: "Amherst county,
pt.o' ooar' OF Law and Chancery, to wi.-The grand
empanneiIed and sworn at the September term Of
sac court, IN the year of our Lord 1884 upon their
h present. that Hliam NJ LAMBERT late OF the county
'"AaA, iaborer with force and arms, in the county
e'd, and within the jurisdiction Of the said court,
, me hrse day Of September in the year Of our Lord,
-, "IiaIy and malicously, and By previous agree
' nnha certain WAtdm M DdctS, oli nght WIN nifS,
W. "t Durs, duel with pistols. said weapons with he
tN' did fight as aforesaid, being such as tho pro.
'as Consequence from which might be the death OF the
a Lambert or of the said Dapis which said duel fought
'n the Weapons aforesaid and at the time and place
ea'd was evil example to others, and form Of the
u' IN such case made and provided, and against the
T, re anu a'sni5 Of the Commonwealth.
"e ueIehosn, moved the Court to quash the ndict'
,ot .i'e oowlng, among other reasons apparent on
iHee .hefeo, l. Because the defendant does not
!ec'y oescfioe The court by ito usual denomination,
o"sequehiy Goes not sufficiently appear from the
S III itsei, lhatn was found by grand Jury
10 th's court. 9. Because it is not charged
~. ''u ihoG, 'neh' thatthe pistols mentoned therein
80, ou' u appearing from the records OF the
H'a. Tue sa'a grand jury was impanneled and
'n Tor the said Crcui, Court and that The said in
,1en' was regularly end legally found by them, and
rI same was duly entered Of record the court over.
ba y. we motion to quash the Indictment euoon
md noant hled general demurrer 10 the Indictment
~ NV attorney for The Commonwealth Joined therein:
court, with the assent Of the defendant adjourn.
Es. L GENERAL Court the following questions: /.
T.. "e neects alleged, or any others apparent upon
t,,m.eo The Indictment sufficient to ouash the in
b., 2 If not sufficient to oua,a. were the de-
.!snsnse gee or appearing, fatal on demurrer. g. What
s. In. Wv 'nouio be rendered on said demurrer?
r. !oorpsv "as argued in the General Court BY the
y 'auo,' c General Tor The Common wealth. and p. r.
- g iae Tor the defendant.
,e,s, oehVered The opinion of the court-It is un.
rui, Com, The first question adjourned The
III adecid.J ''hg overruled the motion 10 Quash,
ssrd it copS and if any error had been
f8M,ee "a and Sd question, ,snses:y "h' OF ei1or.
EH ss;,ue indictment ia apF5c;snt IT, 49,. 800
VIC 0aenee are copied from our statute on