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

! siuef, because " discovers IN tho record anothef
etrot which supersedcs the necessity ri consider
| ing the first. -
! Tho well established practice in England and in
TINS State is that prisoner accused OF felony must
be aftaigned IN person, and must plead IN person
and IN all the subsequent iings, Il Is required
that he shall appear IN person. This p,scice Is
stated in | Chit. Cnm. Law. all, Ais. Il Is
there ad down, that the accused in capital lelonies
cannot be found guilty IN hs absence, aud lut II s
necessary that he should personally attend aud that
II should appear on tho record. Tho rules app-
cable IN England 10 trials for aplal lclohcs are be-
lleved, IN the general, 10 be equally applicable in
tins State, to all the lelones punishable hy oontnc
ment IN the pcnileniin,y In looking into the Eng
lsh forms OF entries in ! Ch,t. Cr. Law ii will be
found, that tho appearance Of the accused is care
fully stated upon the record 10 have been in his pro-
per person. page 26s)
Tbe principles on which this practice is founded
are supposed 10 be Tot obvious 10 need explanation
~ illustration.
In this record it is stated that on the ooh Scpem.
Der, 1887, the accused was led the bar IN custody
OF the keeper Of the Jail. aud heteupon anaigned
aud pleaded. and motion Of he prisoner, the cause
was continued until the first day OF The next term;
and therrupon he was remandrd TO jail. Ai,cr-
wards AT Cneuit Court, Ne., held the 9Th of
April 1893 came as well tire attorney for The Com.
mohwealh rs tho prisoner by ms Attorney and there
upon came jury, Ne. The jury not agreeing upon
Then verdict on that day, were adjourned over
until the neM day and afterwards Saturday the
2sh April, 1898, the record proceeds TO state
that Tho senmc impannellcd upon the trial Of
this cause yesterday, again ihis day ap-
peated in Court aud ietnedto consider OF their
verdict. and after time returned into Court. aud
their oath do saw, +" We oil The jury find The prs
oncr Allen NJ. Speity, guilty OF the felony, chnfg
ed. aud do ascertain the. period OF his cont0e
mcnt in the public jail and penentIary house To be
FIVE wears aud We further find that the mare stolen
has bcen restored to the owner thereof" Where
upon the prisoner was temandcd TO Jail
II It can be inferred from the Circumstance that
the prisoner was remanded 10 jail, hnt he was per
sonaly present durlbg the proceedings on the 2Slh
Of Apnl, when the verdict OF conviction WAS found,
there is no such circumstance stated in the pfotee-
dngs OF the preceding day The only statement III
regard to the appearance ~ the prisoner That day,
is, that lie appeared by Ia, attorney, without any
circumstance stated from which can necessarily BIO
incred thai the prisoner was personally present,
An appearance by attorney cannot imply that the
prisoner was personally present in Court; aud
Therefore Ihe Ircoid Is deficient IN what The law
eards ~ essential to be- stated IN such case.
For tins error therefore, the Conr, is OF opinion
that the judgement must be reversed, and II roh,rr
tdcids dc moro awarded.
LANES xxx " Commonwealth
VIII OF error 10 judgment of Circuit Superior
Cpur of Low aud Chhneciy fof Cabel county. rem
dc,ed against the Plaintiff IN NJ Apiil Term,
1898, upon an indictment ior countelicihg aud pas
ing base CON.
iilst stated that James klIk The lOh Of March,
1899, at the county Of Cdbe 4elonously did pass
to one Ally Williams certain eonuicIieu, forged
mud base toin OF the likeness md smiitudo Of the
Mexican com aud money called dollar, current
within the Commonwealth Of Virginia. MS aud of
a dollar, with intention to inJute and doiiaui The
sad Ally Williams he, the SAID james k,t, at The
time he SO rs aforesaid passed he said base ctin we'll
knowing the same 10 be false. forged aud counterfeit
cd contrary TO the lorm Of The statute, Nc" The
second count charged passing aud Offering to pass
TO Ally Williams with nrnt 10 iujuie and detlaud the
persons inhablling the Commonwealth oiNreina.-
The third count charged the said KIRK with forging
aud CONTRIBUTING two base coins OF The likeness and
smliude Of The Mexican dollar with intent 10 IN
jure and delraud the persons inbabiling the Com
monwealth oil Virginia.
The prisoner moved to quash each in the
indictment which motion was overruled. lie then
pleaded not guilty, and the jury impannclled for his
trial rendered a verdict IN those words f" We the
jury find the.prisoner, James K,rk, guilty of the
felony charged 10 the Two first counts III the lbdiet
meni, which passing aud offering 10 pass was com
miued The first day of March, 1888 and we do
ascertain the period of his confinenent In the pab
lie j, and Penieniiary house TO be ten years, II
from the law that is the least period prescribed but
if five years be the mnm un. then we ascertain the
period Of his confinement IN the public jail and pen
Tertiary house ~ be five years" The verdict took
no notice OF the hind count.
On the trial the prisoner sled two biNs efcxcep-
tons The first bill SETS forth that The trial the
torney for the Commonwealth offered TO give eyi,
dence and proof that the prisoner, his residence
in Cabe county had passed 10 ceftalnAly Williams
counterfeit dollar OF the likeness and similitade OF
n Mexican dollar, current in this Cominonw ealih,
knowing the same 10 he forged and couDtefieit, but
without producing the coin alleged TO have been
passed. aud for passing which the prisoner was then
on TRIAL. That II had also appeared in evidence
that the said Ally Williams resided in Kentucky at
the time OF the lal, and1hat subpnna had been
issued for him. felnrnabe to that 81 the Court.
which subpoena had been returned not found.
Whereupon the prisoner objected to the admlssl-
blliiy Of my evidence going to prove the passing OF
such counterfeit dollar aforesaid, that the
same was forged and counterfeit, unless the attorney
for the Commonwealth first PRODUCED in Court the
same alleged 10 be forged apd counterfeit, and
TO have been passed aforesaid. Tins objection
was overfuled, * the attorney for the Commonw, ID il
permitted to give c'Idcnce Of the passing aforesaid,
and that the dollar so passed was forged and counter
felt and passed by tie prisoner with full knowledge
thereof, without The production of the said forged
and counterfeit dollar, and without any other PIE
lmnary proof lhanas aforesaid. TO which opin.
ion Of the Court the prisoner excepted.
The second bib Of exceptions was taken 10 the
opinion of The Court refusing trial. which was
moved for by the prisoner on the ground that the ev
idence did not warrant the verdict This bill set
out all the facts proved in The cause. II is unneces-
sary to state them, since by the unanimous opinion
Of the General Cdart. they fully sustained the con-
vction.
The Circuit Court rendered judgment that Kirk be
imprisoned IN the pententlary tor len Yeas, the pc
| Rod oy the Jurors IN their verdict ascettained.
Z. K. Grattan for the plaintiff in error, and the
Attorney General for the Common allh, submitted
,la,,,t