Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-12-01

the opinion Of the Court OF Appeals refusing
q new trial.
have the honor to be, very respectfully,
your Obedient servant,
J. l.. GLEAyEs,
Attorney for the Commonwealth for Wylhe
county.
THE oPISIoN OF THE SUPREME COUEr OF
APPENs.
The case Of sutton having been appealed
10 the Supreme court OF Appeals was duly
heard by that tribunal, and 10 July lasi, while
the court was in session st Nytheyiile, MS
unanimous opinion was delivered by judge
Lacy and is published in the october No.
Of The southeastern Reporter. the editor
Of which gives tue following syllabus:
l. CRrHSA. Liw-AREAIGygrSr AID Plea
REMOVAL FHoW COCyTY TO CIRCUIT COURT.
Under Acts Virginia lsU-7s, q. ~. s I. pro
viiing that . person Indicted IN The county court
for q capital offence may "uU0n bis arralgn-
rnontn demand 20 bo tried IN me circuit court
IN which case the record shall be certified there
10. it Is not ground for arrest OF Judgment t-at
upon arraienment the prisoner pleaded not
guilty anc then made hs election % ho tried IN
the circuit court
3 SANE -ARRAIGNHRNrAFTsB REN0TM-
Nor &c ground for arrest that u sfeniant. aftor
such case was removed into thc circuit court, Wa'
not again arraigned and did not again pieha,
although said section further provides that lh
case 0f such removal the prisoner. 10 iu custody,
shall. unless good cause be shown for c1ntinu-
ance. he arraigncd and tried az the next term oi
said court. defendant having made no objection
70 being tried without further plea
g. sANE-TRIAI,-FALrRE 0r ACCUSED TO TEs-
TfFY-COMM N.s.
II is not violation ~ Code virginia 1877 = lD,
3-o1, prohibiting c0mmcn. before the '0urt or
fury upon tho prisoner failure 60 testify for the
prosecuting attorney torom marx ihat tno prisoner
hai not accounted Tor his whereabouts 90 tle
time of the homicide in question, nor Tor h's
flight from The state.
4 SANE-EvIpENcE-DE oF ACCUSED
Evidence OF convorsa'ion hy accused relevant
% the issue o. admissible, although The witness
did not hear the whole ~ u.
g. HOMICIDE E-CIRCUMsTaNTIAL EyInESCE-lN-
sTRCCIIONs.
Az instruction in a murder case that IN cases
Of circum- -tanti1 ogiio.ce, tho timc. place, man
nor. opportunity. motive, and conduct must cI NJ
cur in pointing 20 The prisoner ~ the glu'y
Hgent is properly mDiilcd 90 chHfgo That hil mo
enumerated circumstance or 3uch ni mem f5
may be proved. with oiLer facts, u any, mus. 30
concur.
C. E-NURnER-LvIDESCE
Defendant and an associate were recognized.
although disguised. lurking in rho vicinity, and
going in tie direction Of the homo of de-
c0ased, the scene of the homicide. avoiding tho
road where practicable. hnc inuulrns for Do
ceased: defendant being armed With q rifle.
They were again recognized by dcctn7ci's wife
auI mother hiding in the bushes Gear tho house,
and we're further identified boy peculiar TRACKS
and "a heel. piato on defendants bOOt. A few
moments after being SO recu decea-ed was en'i
Ly two rifle from TIE bushes. Deiendans fled
t0 Illinois and was there captured. and his as.o-
ciate Whereabouts was unknown af the tlme
az fhe trial There was evidence tending 90 i'm
peach and con;4adirt tho states witnesses and
10 show defendants good charnttcr. Bs'd, that
the evidence justified q conviction for murder n
the frst degree.
Error 10 Circuit Court WVthe county.
Indictment for murder against Nayman
sutton and Morgan Peudleion. sutton was
tried, found guilty Of murder in the tirst de-
gree, and sentenced to doaih. From that
judgment be brings error. Code o. irginia
1857. chapter 100, section $500. gives the de.
icndsnt in a criminal case the right totestIfy
~ his own behalf, but provides that his
failure so 20 do shall create no presumption
az inst him. and shal n0t hc the subject of
comment by the prosecuting attorney be-
fore the court or jury.
Blair, Fulton * McFocr for pllint'h In
error. Il. A. Ayers. AttorueyGencral, and
i. l.. Gleayo, for the Commonwealth.
THg CASE ~ Ea.EF.
After dispogng oi various law points
Judge Lacy said ia his opinion:
as to the reiu,ud of the cOu-t 10 eetas.de the
verdict OF the Jury as unsupported hy ihe
evidence and q. against the weight oi Cyi-
dpncp. We VIII here remsrk that thc mIu-
nc in which thu, motion shall bc considered,
the evidene. having been certified. b. rHel
by law. "Wben case at iaW. civil or crIm-
inal is tried hy jury, ana q party eNcepis
90 the Judgment or action OF thr court IN
granting or refusing b. grant q new tria, on
a motion 20 set aside the verdict of
3 jury on the ground that u Is
contrary to the evidence, or when a
clse 40 law is dccldec hy q court or
iudQe without the Intervention Oi = jury,
and a party eXccpis a. the decision on the
ground that 10 is contrary 10 the evidence,
ana the evidence mot The facts rs GER
tifcd. the rule of decision iu the
appellate court, in considering the Cyi-
dcuce in the case. shall be- a- on demurrer
10 the evidence bv the party excepting" ."
Code ol Nlrginia. 3isf. On demurrer 70
evidence the rule IN Virginia Is 10 put all
the evidence Oh both sides into the dcmur-
rer. and then 20 consider the demuree a. II
,he dcmurrant had admitted all that could
reasonably De inferred by jury from the
evidence given by the other party, and
waived all the evidence on his part which
coniradicts that offered bY the other party.
or the credit oi which is impeached. and All
inicrences from hi. own evidence which DO
not necessarily flow from it. Railroad
Company rs. Moore's administrator, IS
Virginia, %, and cases cited.
MURDERED IN THE PEEseNCEov MOTHER, WIFE,
AND FOUE CHILDREN.
10 concluding bis opinion Judge Lacy
gave the following sketch Of the murder
The evidence ~ this case. considered under
the FOREGOING rule Of decision, is that the de-.
ceased, Petcl llaryel, Oh the 18th OF Mas,
1857. Wss at bis home in Nythe county, TO
which ne had reirCated The day before,
wounded and disabled from an armed a--
sault made upon him in The adjoining county
OF Smyth. bv others, st his then home. The
accused on that day came into tue immedi-
ate vicinity OF Peter lllrveifs house dis
gulsed with PAINTED face, ia company with
his lather.in-law, One Morgan Pendleton,
also disguised with his face painted. That
they inquired for Peter IlaryeiPs house, inio
which ne had just moved. The accused
SAID the witness need not be afraid 10 talk;
they were friends Of Peter Harytl;
WhereuDou witness assured them that be
knew them. and called them by their true
names respectively. PendletCu said his
name was Winn. they proceeded towards
the house OF Peter Haryell, avoiding the
public highway rs they came nearer, passing
through the bushes or fields as opportunity
offered, each armed with a rifle. They were
often seen and recognized. and when recOg-
ulZed they shunned intercourse with others
and moved towards the cover Of the brusn.
when close 20 the house they were seen bY
Peter HaTyelPs old mother, woo said, "Ihose
men are after no good, " and hurried ahead
OF them TO warn her son that he was 10 De
again attacked. Haryel's lie, going 20 The
.prin. for water. saw them close 70 the house
IN the busses squatting down. Tue old
mother then went upln the bushes 10 confront
them. but they ran around through the bushes
70 avoid an interview, but not until she bad
drawn close 10 them and recognized them;
and when they Jumped over a fence close
by she noticed the iron heel-plaies which
sutton wore, and witch are Identified as his
own make by others, and which marked ali
his tracks around the house. The mother
then went 10 her son and helped his wife
wash ard dress him IN order 10 remove him
10 a ncighbOr's house for safety. Their ar
rangements being completed, they started 10
20. and ~ the three-the aged mother on one
side supporting, and the wife on The other
side supporting the wOunsed and disabled
son and husband between them, with The
four litlle children behind them-eame into
the doOrWav two rides iTe1 from rests Ia