Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1839-06-21
GENERAL COURT OF VIRGINIA.

"a,
C02ton, eh's''"''' '' sS' - -
'''"' 3r,n " Spsrry v. Commonwealth.
W.. II error 10 judgment Of the Circu.; Superior
. sw and Chencery for Cabell county, endered
,bs plaintiff error at April Term, 1895 upon:
"s,,.,n.n FOR stealing an iron gray mare of ME vac
1 II sky dollars. tie property OF Lewis Bench. The
'.,ssd was convicted and sentenced 20 imprisonment
q, five wears 10 the penenlisry.
~ Ths ind,cmen, was found ct September Term 1887;
=. ,bs prisoner led to the bar in custody,
o." ost ana pleaded mot guilty. : Whereupon his
n,,,n the cause continued I'LL the next term
IN. record then States that al Circuit Court cou.
,,sd and held for Cobell county, on Friday the 9th
NJ Apr 1855, 'came as we'll the Attorney for the Com
ors,an as The prisoner By his attorney, and there
n,csmr Jury" &c, who, having heard the tesii-
Inv and srgume Of counsel, retired 10 consider Of
,n.,, verdict ard not agreeing that day, ad-
EARNED until The next, when they again appeared in
Cart and rendered their verdict; "whereupon, the pri-
amer was remanded 10 lail.
Shrn brought into Court on subsequent day OF the
term 10 receive his sentence the prisoner moved the
Coar, grant him trial, on the ground, that the
verdict contrary 10 the evidence; which motion be-
,nq ay-rruied he excepted and set out In his bill OF
co,,ons all the material facts and proved
on tn ral These being novel in their character are
detailed here, though the cause was decided in the &C.
neral Court withou, reference 10 them.
In September 1887, The prisoner was at work with the
witness Lewis Bench, in the eighborhood where they
both lived when The prisoner asked witness II he had
60. the spell taken of his gun. Witness said he had not
then told witness lnat ~ ne wouio come Gown
IN morning before breakfast, 10 the place where they
we're then work, and place log across the road, and
las gun upon il, and turn round and walk off with
on, looking back speaking, prisoner would take the
sell off Witness refused TO do so. Prisoner then told
nm that If he would climb 10 The top OF the mountain
mar his house before SUNRISE and there put in The gun
charge of salt and charge of powder and then ball,
IN lie Of Beelzrbuh, the devil, and then walk of
.us short distance, he would deer (bot 1t would
NJ, = deer) which he shoot at with the load
nut INTO the gun and then the deer would of, and
p,ss nusi follow il, and the deer would take him 10
hs mouse Ii witness followed this prescription, II would
.ss the spell from his gun. Witness neglected 10 do
ms because 10 his wordsl The could not bring
i mind iuly to the assignment that il would unspell his
cpn Shortly after this the prisoner and certain Ed.
1und Ferguson came TO the house Of the witness; aud
AFTER beng there short time, Ferguson said 10 the
,,.,rer "CoujuToI, begin" Thereupon prisoner took
down the gun and started out Of The house, when Fer
yusan asked IT he aud the witness might go with him,
10 winch he asssn,ed. They all then went 70 bend
N M creek as i, was said TO be important, in unspe
IN, vuns 10 shoot water. After shooting SIX
uaes leach Of them shoo,ngl the gun was declared
ty The prisoner to be unspeed all of them having made
GOOD shots Alter his, Ferguson remarked, ahat the
prs nsr CO oh, give witness written receipt for
.y.iing his gun: wheseupon prisoner pulled out pen
aud INK went 10 sde and wrote on piece OF pa.
pr what he called receipt or direction tor nnspeing
guns. lie SAID 1t ought 10 CONTAIN three names; and
n.reupnn the witness asked Ferguson TO sign it
witness which would make The third name. Ferguson
id so Witness asked Ferguson TO read the paper,
declined do, saying IL woCiu 90 some olner
,m, and The papes not then read, could the
vip,. read riiinp Prisoner told witness to put the
paper r'o his sho,-pouch, and there keep IT, Prisoner
and Ferguson then away down The Greek towards
where thew lived 10 hunt their cattle, rs they said
Nh.n prisoner fist 10 the house. witness mare
was licking sa and after a short time witness told his
We 10 dive her down the creek, towards her usual
c:a ny ground in the woods, which was done All this
hp2rnec ., near The house of witness on Friday,
sorae tine IN september, 1887 On the next day. wit.
mes was 10 leave home 10 90 journey OF 40 or l3O
miles into the State of Ohio-On Saturday morning
prisoner aeut Paueys, about miles from Benchs
RESIDENCE with the aforesaid in his possession,
and r,ov'sst 10 sci! her telling Pauley he had bought
her irra Bench :or Si5, upon two years credit While
hey trading, Ferguson came up and ADVISED Eau.
l-y 10 buy tie mare, which he dd al DO collars, ana
gaze his 10, the al twelve months- PRISONER
.c,: The the dag to Lewis Ferguson the bro
!as' OF Edmund, tar cash, but al discount On sun.
cty morning. Bench started foot, as he had previous
ly insEdc, on his journey before mentioned. Gong
through It, negaburhood he learned that the prisoner
had sid bis mare he then went 10 Pauleys and ascer.
tanned h- TACT Whereupon he caused the prisoner to
be arrested on the day Sunday In the evening
Of that Ga., the Constable who arrested the prisoner
sane 10 b. ach house, TO which he had returned. and
Berchs osrarce read The supposed receipt or 6Iec.
lion aforesaid Tor unspeng his gun which turned out
70 Dc the note OF prisoner 10 Bench for forty hVe dol
I'is payable two years, in consideration OF an IRON
gay mare, beng the mare which was sold 10 rau-
Try II was also testified BY David Batsram stepather
Of pfscre' that al The time when prisoner was before
In committing magistrate Bench ia conversation with
'h'' %'tn"ss, od him that when he was at work with
prisoner, as before mentioned they had had some con
vsfssIioh about The purchase Of mare; but at this point
Inc conS'ss'ion with this witness was broken on,
Bench beng called testify, and 1t was not resum.
&c But Bench in his testimony denied that he had
eSe hao any conversation with prisoner about selling
mare II vas also proved that Bench had TWO mares,
anc nat both we're running in the woods PRISONER was
ionng man, apparently about 20 years old, and no
p;oo vas given Of hiss having any property whatever
greater q he
'rd from the testimony Of Bench, who was proved to
nave been partially deranged Two or three years before
Tue mat ou' whose mind had been Tor the last year as
s"'ho as usual The witnesses who knew bench, s'aeo
maj he was capable of nanating circumstances truly,
ehe that ne was man Of truth on oath.
10 his petition to The General Court, the prisoner as
sheo Tor error the refusal OF the Circuit Court to grant
He"Hia insisting that the whole eSide nee only sheW.
70 Tim TO have been guilty of fraud and did not war
fsAa conviction Of felony For thic "And other errors
sapafenton the face Of the record, he prayed writ OF
e'ioi; which awarded
The cause was submitted by P R. Grattan for the
Pa'nif error and The Attorney General for the Com
Aonweanh
LoNAI, J delivered the opinion Of the Court The
INST error relied upon the petition in this case, The
,.'osa Of The Court below 10 grant new u'ai, inns
.cH has deemed it unnecessary 10 CONSIDER because
ssnvers in the record another error which suPersedes
ICE necessity OF considering the FIRST.
he well established practice in England and IN this
safe 49, that prisoner accused OF felony must be ar
gned person. and mus, plead in person; and in all
ne subsequent proceedings IS required mat ne snaii
appear person. This practice is stated IN Chit. GRIM
Law Ill. ii II is there laid down. 'hat .ne accused
capital feones csppo, be found guilty 10 his absence,
and TIA, necessary be should personally attend;
'nd hat should appear the record the Fules ap
pcble in England trials for capital iconles' are De
'rsd, the &c neral 10 be equally applicable 10 this
sse TO all elonies punishable by confinement ~ sue
p'H'ennary In looking into the English forms of en-
Mes IN Chit Cr Law, il will be found, that the ap
patsnce of The accused is carefully stated upon Inc re-
to n no nean pb is ronpf (HdQe
The principles on which this practice is founded are
supposed TO be loo obvious 10 need explanation or llios'
Gston
IN this record is stated that on the 29h September,
,oo' the accused led the bar in custody OF the
Keeper Of The Jail and thereupon arragned and pleaded:
aho on motion Of The nraoner the was continued