Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-05-03
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
vIRciNIAN- PILOT.
-~v
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
wADLEY ". COMMONWEALTH.

WADLEY ". COMMONWEALTH.
Supreme Court of Appeals OF Virginia
March 10, 1900.
IT PROPERTY IS CONVERTED BY
A PERSON UNDER A BONA FIDE
CLAIM OF RIGHT. 1T is NOT EN-
BEzzLEMENT. A GUILTY IN
TENT IS ESSENTIAL.
AN INJUNCTION BY A FEDERAL
COURT. PROHIBITING THE LAW
OFFICERS OF THE STATE FROM
TRYING A PRISONER, COMES
WITHIN THE EXCEPTIONS OF
THE STATUTE WHICH RE-
oUIRES THE ACCUSED TO BE
TRIED WITHIN A CERTAIN TIME
AFTER INDICTMENT.
Wadley was convicted of embezzle-
ment and appealed.
The Court says;
Exception was taken to the action of
the County Court in refusing to dis
charge the prisoner forever from pros
ecution upon the ground that there had
been four regular terms Of the court,
after the indictment was found, with
out a trial. There was no error In this
ruling. 1t appears that the prisoner
resorted to the novel proceeding of OBJ
tanning from the Federal Court an in
junction restraining the law officer or
the State from proceeding with his trial
and prohibiting the use of certain books
and records as evidence on behair OF
the Commonwealth, and by this means
caused the delay that he now seeks to
take advantage of. The contention is
that the statute does not enumerate an
Injunction by Federal Court as one Of
the causes of delay disenttliDg the
prisoner to his discharge. 1t may fair
ly be presumed that the legisla ture
never contemplated such cause of de-
lay, and it would defeat rather than
carry out the purpose of the enactment
to give it's language the narrow and
technical meaning commended for. The
sole object was to ensure speedy trinl.
1.-THE statute never meant by its EMU
meration of exceptions, or excuse for
failure to try, to exclude others of a
similar nature or in pari ratione: but
only to enact If the Commonwealth was
in default for three terms without any
of the excuses for the failure enumera-
ted in the statute. or such like excuses,
fairly applicable by the courts from the
reason and spirit Of the law, the pris-
oner should be entitled to his dis
charg."
Instruction No. 3, asked for by the
prisoner, was in these words: Before
you can convict the prisoner under any
count of the indictment against him
you must believe beyond a reasonable
doubt that he feloniously took, appro-
priated. disposed of or converted to his
own use the property or some part
thereof therein mentioned; that Is, that
he did so with n criminal intent and
not under an honest belief that he had
bona fide claim OF right TO do So"
This instruction was modified by
striking therefrom the words land not
under an honest belief that he had a
bona fide claim of right to do SOL
IL there was evidence TO support the
instruction, as asked for, it should have
been given. In embezzlement Is in lar
ceny there must be a fraudulent pur-
pose to dcDrive the owner of his prop
erty and appropriate the same. II
property is converted under bona fde
claim of right, the conversion is not
embezzlemcnt. II. therefore, upon an
other trial there should be evidence
tending to show that the prisoner acted
under an honest belief that he had a
bona fide claim of right, instruction No.
.. us asked for, must be given.
Reversed