The times. [volume] (Richmond, Va.) 1890-1903, 1901-02-08
DAN MONTGOMERY
GETS NEW TRIAL
Supreme Court Reverses Lower Tribu-
nal Third Time.
OTHER CASES PASSED UPON.
Passed Upon-rnc Right Of Assigns
mont OF Insuramcc-Question
of Quashin: Executions.


OF the opinions delivered by the Su-
p-eme Court OF Appeals yesterday prob
ably the NEST Interesting was that Of
Montgomery -. The Commonwealth, ap-
pcalcd from the Circuit Court OF Rock
loridsc cclsl.ty. and reversed. This Is the
third time this case has been here for
:cyiew. and the opinion viii, no uoubt,
be accepted as a leading one on the cues
ton OF what is the proper exercise OF the
right OF self-dsfensc IN cases of assault
and battery.
The case of Ccre vs.. City of Norfolk,
appealed from The Corporation Court of
that city. and reversed, presents some
Very important points as to what steps
are neCt SSarx 10 be taken by Il city or
1cwn liz acquiring the property of indi-
zidi'a:s for the purpose of extending dts
streets.
Baer W. Ingram ct ais. appealed from
the Circuit Court of Allegheny county.
and reversed. involves the consideration
of tho rights Of the Judgment creditor.
who has had more than one execution
issued. and where one has been quaS!led.
20 proceed to have the other made ef-
fcctiye by ssarniShee process.
In the opinion rendered in the case Of
"
Specie. Admir-. etc. appealed from the
Circuit Court OF Roanoke, and reversed.
will be found a fun discussion of the law
tn reference to the right OF creditor to
insure the life of his debtor, and the
right of the debtor to assign his policy to
his creditor, and Of the personal repre-
sentative Of the deceased debtor to re-
cover for the estate all balances over
the debt, etc.
;s,-ht of ScIf-Defense-
Daniel Montgomery VS.. The Common
wealth. From the Circuit Court OF
Rockbridgc county. Opinion by Judge
P9Iegar.
Montgomery was convicted in the Coun-
" Court for maliciousl!- cutting VIM. L.
Davidson with intent to kill, anG was
sentenced To four years in the peniten-
1iary- The Court of Appeals, at its June
fern 1909. set aside the verdict and
awarded a new trial. The prisoner was
again convicted. and a new trial was
ag:.in awarded by this court at its Sep
1e.nber term. 1900. He has been COLI
victcd a third time and sentenced to
foGr years service in the penitentiary-
a writ OF error was refused by the
Circuit Court of Rockbridse and awarded
by one of the judges OF this court
The case is now up for review Of in
struction No. 9.aslled by the prisoner and
refused. which is follows The court
further instructs the jury that if they
believe that Davidson got down oil MS
horse and started toward the prisoner
demanding the gun and saying he would
see about whether the prisoner left. this
of itself was such Il threat and demon
stration on the part of Davidson as TO
warrant the prisoner in placing himself
IN a position TO defend himself and ward
off the assault, and if he jumped back
with gun in hand. pointed and cooked at
aii
me / Will shoot you" These are not
such threats on the part OF the prisoner
as warranted Davidson i'll picking up
corn-cutter and proceeding TO attack
the prisoner, and il you believe he did SO,
then You must regard Davidson as the
attacking party and find the prisoner
not guilty.
This instruction is held to have been
proper and should have been granted.
The court also held that if a new trial
Is had. the evidence of W. l.. DAVIDSON
given at the first trial. and who has since
died. should be excluded, quoting Bragg's
case, 10 Graf, 10, and Firms case,
ram. 70l. Judgment was reversed and
case renanded.
Condemnation Proceedings.
Gore vs.. City Of Norfolk. From the Cor
poratiOn Court of the city OF NoTio!k
Opinion by Judge Buchanan.
These iproceedings were Instituted under
sf,antfs,. &c of the Code by the Councils OF
.be civ of Norfolk for the purpose OF
conde.nning certain lands OF the plain
tiff IN error for its uses as a street
The plaintiff in error denied that the
Councils of the city had made any bona
edo effort TO agree upon terms of pur-
,yhas.e for his lands, after the deternina-
ZION by said Councils 20 extend the street
through his property. ana objected to the
appo!ut1nent o. commissioners, nut the
court after hearing evidence, oVerruiec
DIS objection
as error and the assignment Was he!d
by this court TO be good
The Judgment complained of is reversed
and the proceedings in the lower court
81. aside, and this court viii alter such
order of ais-na4ssai as the Cooperation
Court ought TO have entered
Quashing Executions.
Ren Bae, vs. Ingram ct ais. From the
circuit Court of Allegheny county.
The sole question consadered IN lliS
,,,,peai is the effect OF the order er!tered
nv the Judge of the Circuit Court in va
cation iIpon the motion quashing the exc
s-,ltfon ISSUED September .. 49,, upon
the lien acquired by virtue of the eNecu-
zion issued on the 9TH day OF June upon
Che same Judgment
Tho aI1pelIant acquired a lien under sec
.Eri
arises upon section 36o2. as to when The
li.n ended. The contention of the appellee
l,ejn- that the Judgment of the Circuit
.-ol,I,t ol!asl1ing the second execution IS TO
:7e construed as such legal process as
suzpends the right OF the judgment credi-
sor 10 enforce the lien Of his judgment
The execution debtors caused only the
,o,n execution 10 zoe quashed; they did
moi ask that the other should be quashed,
and they have, so far as this record shows.
made no objection 10 its being enforced
as 4 lien upon tIle interests arising under
the Will % John Kelly, deceased
The Court OF Appeals said: We do not
consider the order Of the circuit judge as
s,avi,,- any other operation than 10 quash
.he execution at which it was directed
1t In no respect operated upon the Juds-
rnert or affected the right of TIE plain
tif In the judgment 20 enforce 1t by
execution. soire facias. or action 1t does
mot. IN tens. attempt to do so, nor does
su;1, an order come within the spirit OF
se2iion Soc. -
Judgment Of tic Circuit Court reversed,
sl,o,.,y, ant cred this Court