Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1839-06-27

-fteH ~ ePfffF v. commonwealth
i Writ of eifot to judgment of tho Circuit Supe.
nor Court of Law and Chanoery iof Cabell county.
rendered against the plaintiff IN error AT April Term,
1883, upon an Indictment for stealing iron gray
mare o the value of sixty dollars, the property oi
Lewis Bench. The accused WINS convicted aud sen.
fenced 10 imprisonment for five years IN the pe.-
Tertiary.
The indictment was found NJ September Term
1897 and the prisoner was led to the bar IN custo-
dy, was arralgned, aud pleaded not guilty. Where.
upon, on his motion, the cause was continued unt
/ the next term.
The record then states that nj Circuit Court con
iinued and held Tor Cabell county. on Friday tho
/ 9th OF April 1888, ''eame as well the Attorney Ior
the Commonwealth. ~ the prisoner by has Attorney,
and Iheieupon." Ne. who having heard the testma-
ny and aIeHmonis OF counsel lelired To consider OF
ther verdict, and agreeing that day. were adj
iourned untll the ueNt, when they again appear.
ed in Court. aud rendered their verdict where
upon, the prisoner wns remanded 10 jail"
Wien brought into Coutt on n Subsequent day OF
the term, receive his sentence the ptlsonet moved
the Court To giant hun a new tral, on the ground
that the verdict contrary 10 the evidence
which motion being oyeuuled, he excepted. and sci
out in his bill OF exception, all the material facts
and circumstances proved ON lie trial. These being
novel in their character, ate detailed here, though
the cause decided IN the General Count without
reference to them,
In September, 1897 the prisoner was at work with
tho witness, Lewis Bench, in the ncighbohood
/ where they both lived. when the prisoner asked
witness il he had goi the spell taken of his gun
Witness said he had not Prisoner Then told wit
ness, that fine would como down in the morning be-
fore breakfast to the place where they we've then nj
work, and place log across the road and lay the
gun upon it, and turn round aud walk OF without
looking back or speaking, prisoner would take the
spell off. Witness refused 10 do so. Prisoner then
told him. that il he would climb to the top of the
mountain near his house before sunrise, and lhere
I T., and ola.
der aud thea bali, in the name of BseIzesub, the
devil aud then walk of some short distance. he
would see deer, (bnt It would not be dcef)
which he must shoot AT with the load pun INTO the
gun and then the deer would run of and witness
must follow il, aud The deer would take him TO his
house II the witness followed this prcsc tiption IL
would take the spell from his gun. Witness neg
ected 10 do tins because TO use his own wofds) he
could not bring his MUD fully 10 the Judgment
thai IL would unspe his gun" Shonly after this
the prisoner and certain Edmund Ferguson came
To the house of the witncss and after being there
some short time, Ferguson sad to. the prisoner
=" Conlufof, begin Iherrupon prisoner took
down he gun, and started out Of the house when
Ferguson asked he and the withess might 20 with
him 10 which he assented. They all then went to
bend IN the cieek ms II said TO be important IN
unspeng guns, 10 shoot across water. After shoot
inc SIX times teach OF them shooting) the gun was
declared by the prisoner he unspeIltd all OF them
having made good shots After this, Ferguson re-
mark ed that the prisoner ought to give witness
written receipt FOR unspclllug his gun: wherrupop
prisoner pulled out pen aud ink, went to one side
and wrote on piece ofpaper what he called a re-
ceipt or direction for unspelllng guns. lie said IL
ought to contain thfee names; and thereupon the
witness asked Ferguson TO sign 1t as witness, which
would make the third name. Fergusondd 50. Wit
ness asked Ferguson read The paper; which he de
cl,urd 10 do, saying II would do some other time and
tie paper was nor Then read nor could The witness
read writing. Prisoner told witness 10 put The pa
per INTO his shot pouch, and there keep 1t. Prison
/ er and Ferguson then went away down the Creek 10
" ards where they lived to hunt their cattle, they
SAID When prisoner FIST came TO The house, wit
nesss mars licking salt, and after short time
witness told his wife drive her down the creek,
wards her usual erizng ground IN the woods whit h
was done. All tins happened At and near the house
ofwitness, on Friday, some time 10 September, l537
On he next day, witness WAS to leave home to go a
Journey OF 1870 or 80 miles, into the State OF Ohio
/ On Saturday morning prisoner went TO Pauley's.
about . miles from Bench's residence, with the maze
aforesaid in ms possession, and proposed TO sell her
telling Pauley he had bought her from Bench for
S45 upon two years credit While they were ira
ding, Ferguson came up and advised Pauley TO
buy the mare which he dId as dollars, and gave his
note for the same at twelve months Prisoner sold
the note the same day to Lewis Ferguson The bro
Their of Edmund, for cash. but AT discount. On Sun
day morning, Bench started on foot, he had pre-
lylousIy intended, his journey before mentioned.
the prisoner had sold his mare; he then went To
! Pauey's aud ascertalned the fact. WhereupoD lie
caused the prisoner TO be arrested on The same day
! fSundayD In the evening OF that day. the COnsta-
BILE who arrested Tire prisoner came to Bencbs house
TO which he had returned and at Bench's instance
read the supposed receipt direction aforesaid for
unspeling his gun, which turned but 10 be the note
of prisoner 10 Bench for forty five dollars paya-
BILE in two years, IN consideration oi an non gray
mare being the same mare which was sold 10 Pau
l.. fad bu Ra. stan 4.
lher of prisoner, that AT the time when prisoner was
before the committing magistrate, Bench, in convfr-
saion with this witness, told him that when he was
! at work with prisoner, as before mentoae !, they
had some conversation about The purchase of
but at this point the conversation with this witness
was broken off Bench being called testify,
and il was not resumed. But Bench in his testimo-
! nv denied that he had ever had any conversation
with prisoner about selling mare. 1t was also
proved that Bench had two and that both
were running in the woods. Prisoner was young
man, apparently about 20 years old, and no proof
was given of his having any property whatever The
greater portion OF the facts above stated were de-
rived from the testimony of Bench, who proved
to have been partially deranged Two three years
! before the trial but whose mind had been for the
last year as sound usual The Witnesses who knew
Bench stated that he capable oil narrating cir
curnstauces truly, aud thai he of truth on
oath
In his petition to the General Count, the prisoner
assigned for error the refusal of the Circuit Count 10
grant new rial insisting that the whole evidence
only shew ed him have been guilty Of fraud and
did not warrant "A conviction of felony. For this
/" and other errors apparent the face of the
record" he prayed wrt OF error which was IA
warded. =
n ,t..,,t I.,I IN,