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

IN this case was committed before The passage OF The act
But the law is general in ills TERMS aud applies all
cases OF convictions after IFS passage The trial in this
case occurred shortly after the Law passed and though
of IFS passage had reached the county here The
trial took place. it is manifest from the finding That the
precise terms Of The law known or whether il
was general or was confined TO which might occur
thereafter. The verdict wns intended 10 give the Pri-
soner the benefit Of The law if applied his case and
the Court acting The law then before il, sentenced
HIM to ten years confinement This can be cor
reced by THIS Court reversing the judgment and enter
ing such judgnen, the Circuit Court shonid have
entered he verdict takes notice Of the third count
OF the Indictment In such has been decided by
this Court. Commonwealth e. Bennett Va Gas, 1851
that Judgment VI arGuittal should he entered The
count 10 which lie jury have found. This
be Gone in the judgment 10 be entered here.
Judgment reversed; and this Court proceeding, Nc,
il is considered that The plaintiff in be mprsoned
IN The public Jail and peniIPuary house Tor the term OF
hve years, the lowest period by the in their YER
cict ascerlaned and that he be kept in solitary cell,
on low and coarse Diet for the space Of one Twelfth, part
OF The said erm aud that he be acquitted Of the charge
IN The third count Of the indictment.
hadrack BrOtcn v. Commonwealth.
Petition for wit of error TO judgment Of the Circuit
Superior Court of Law and Chancery for Washington
county
The petitioner indicted and tried at October Term,
1888, for horse stealing. The jury having found him
guilty OF the charge, aud ascerained his term of i'm
prisOnment in the penentiay 10 be FIVE years he there
upon moved The Courlo aside the verdict and grant
him new trial, on the ground that the evidence did
not warrant the finding and The Court having overruled
the motion and rendered Judgment according 10 the
Dict he excepted TO It's opinion and forth in his bill
OF exceptions the facts proved the trial They will
be found sufficiently stated in the opinion Of this Court
which was delivered by
ScoTr, j The question in this u.s. whether the
jury were warranted in taking true that part Of the
confession of the petitioner which tended prove
guilt, and rejecting that which excuPated him. ma
jony Of the Court OF opinion that they were.-
When the confession Of party, either in a civil cri
mnal (fo the rule is The in boih is given in
evidence The whole, well that part which makes for
him, that which is against him. must be taken toge.
ther and go TO the jury evidence in The But,
like other evidence, il must be weighed, and believed
or dsbeleved, in whole in part, as reason may de-
eide The jury cannot, by mere arbitrary exercise of
The will take part 10 be true, and reject the residue.
IT, therefore, there be nothing in The case warrantng
such Discrimination the whole must be taken 10 be
true But it. from opposing evidence or The confession
i.sef facts appear which ore sufficient to satisfy "a
,iona mind that not rne ought 10 De rejected
Phillips Evil Sd American edi, p. 50. Rex Y. Jones,
. Carr. and Payne 629. Rex V. Higgins, Id COB.
I Rex Cewes, Id 22l When tried by this rule we
think the excupaory statement of the petitioner was
properly dsbeIieved by the jury 1t was highly impro.
babe, contradictory, and its whole character tended ra
ther 10 prove guilt Than innocence. he was met by an
acquaintance about sunset in The evening preceding
the night in which the horse in question was stolen,
six or miles from the residence OF the prosecu
tor but passed the distance Of fifteen or twenty
yards without speaking, seemingly wishing 10 avoid
being recognised. According TO hs own account lie
purchased the horse in The early part OF The night,
after The usual preliminary chafering for fourth of
his value; the lane Of the and within sight
of his house from mau whom he did not know, and
who, although his name ls given, seems 10 be equally
unknown TO every body else, for hear Of
him. II suddenly occurred 10 him. from the smallness
Of The price, that the horse either unsound had
been sioen and thtreupon, instead Of pursuing the
supposed swindler ieon he abandoned his previous
Intention Of spending the ght al a.neighborng house,
resolved TO turn penny by speedy sale turned IN
opposite direction, and by breakfast time the next morn.
,.I. lot,t
Of thirty eight miles arugged country 10 the house
of Mr. Cassin Tennessee, 9TH whom he exchanged
him for watch of about half his value He then
passed into North Carolina the place OF his birth =
From the evidence Of the prosecutor appears that The
horse traced by his footprints firm he field Of
which he taken into road leading TO Tennessee,
along which Ike rapidly passed in that direction. and
found in the possession Of Cass; from whose description
Of the petitioner the prosecutor enabled Ia pursue
and arrest him " hen arrested he protested his
cence and declared his ability to prove an abb. Upon
second thought he abandoned that position, and gave
The account above stated tie was armed with brace
of pistols brea asst dirk and dirk knife He drew both
pistols upon The constable, and threatened 10 shoo, him,
II he laid hands him After being taken he attempted
TO escape The watch found concealed in the shoe
of his saddle bops and the he gave for the con
ceamcnt that he had heard that the prosecutor was
pursv Of horse thief, aud il occurred 10 him hat
he had bnugh, and sold the horse that had been stolen
And this device, and resisunce and attempt 10 escape,
were resoried 10 by who was arrested IN the
county in which he born and (with The exception
OF years spen, in the WesO had passed ms life, and
within fifteen miles OF the residence oil his ialher
Writ of error refused
From the foregoing opinion and judgment, Smith. D0
MIL C!opton Christian and Allen Judges, dlssenIed.
.Tohn Norris Y. Commonwealth.
Petition for writ of TO Judgment Of the Circuit
Superior Court OF Law and Cbancery for Chesterfield
county.
The petitioner was indicted at October Term, 1888,
tor Iarceny was tried convicted, and sentenced 10 i'm
prsonmenl for years in the peni,enary AMER
verdict rendered, he moved the Court TO arrest the
Judgment against him, on The ground that IN The Era.
mining Court application which he made tor CONT
nuapce Of the had been improperly refused The
bill of exceptions taken To the opinion oil The Examining
Court was in hae rcrba IN The record OF the Cir
cut Court. On Argument OF the motion to arrest the
udqnenl the Circuit Court held that the Examining
Cour, did in refusing the continuance, and there
fore overruled the said motion.
SMITH delivered The resolution OF the General
Court is deemed unnecessary 10 decide whether The
Examining Cour' erred in refusing to continue The CASE
on the motion Of the prisoner whether such an error,
il committed could any way avail The prisoner 10 The
Giro Court-ths Court being unanimously Of opinion,
tina, The plea Of errors arrest Of ud gment, could not
be sustained nasmuch it suggests matter making no
part of the record bu. matter, which, 1t The prisoner
could have svaed himself OF II al all should have been
taken advantage OF by plea in abatement, or molten
4 to quash. See Cohens case, Va Gas, l3s. william
\ Angels case, Id 23l.
/ WIT of error refused
Communicable v. Francis Young.
Upon indc,mtn, against Young IN The Circuit su
ne ror Court Of Law and Chancery for Dnwddle conI
IT, hat Court adjourned 10 The General Court, for no
vety and difficulty, Two questions arising IN The cause
but the record did state that the questions were ad
/ iourned with the consent Of the defendant.
/ SMITH I. delivered the resolution OF the General
/ Court The Court is unanimously OF opinion That It
has jurisdiction TO decide the questions ADJOURNED 10
it, because il does not appear by The record that the al
iournment with the consent OF the defendant See
| Gar,hs case, Leigh, FOL
JPn p Moore alias Jas 4 Robertson Commonwealth
Petition for writ OF error to Judgmen' Q. me o'cu
Superior Court Of Law and Chuncery for Scott county,
rendered agains, The petitioner al September term s5
upon an Indictment inr bgamy, in marrying Martha
McHenry while his wife Joanna NJ, Formerly Joanna
/ N Fleming was alive.
On his uragnment, The prisoner pleaded in abatement