20 S.E. 893 | Va. | 1895
delivered the opinion of the court.
The petition of the plaintiff for this writ of error alleges the following errors of the county court, namely: First, that the accused was tried without a plea; second, that no venue was proven; third, that the court erred in refusing to quash the venire facias on Monday, April 9, 1894, on the ground that the. court, after said writ was returned executed, erased therefrom the name of a venire man, and inserted therein the name of another, etc.; and that the county court erred in overruling the motion of the accused to set aside the verdict of the jury, and grant him a new trial, on the ground that the said verdict is contrary to the law and the evidence, etc.; and, further, that the county court erred in not granting the accused a new trial on the alleged after-discovered evidence of one Henry Campbell.
Taking the errors assigned in their order, we come, first, to the question whether or not the accused was tried without a plea. The record, in the bill of exceptions No. 1 (page 10 of the printed record), shows that the plea of “Not guilty” was entered, and that the record of the tidal court so showed, and that no objection was made to the record by the prisoner ; hence this assignment of error is not well grounded.
2. Was the venue proven? The evidence shows conclusively that the murder of Henry Speaks was committed at a cabin on
3. The facts upon which this third assignment of error is-made are not sustained by the record, but the contrary is shown in bill of exception No. 2 (page 11 of printed record). Thus, this assignment of error is disposed of, and brings this court to the real question in the case, to wit: Is the evidence plainly insufficient to warrant the finding of the jury, and did the county court err in refusing to set the verdict aside, and grant the accused a new trial, on the ground that the verdict is contrary to the law and the evidence, or did the court err in refusing to grant the accused a new trial on the alleged after-discovered evidence of Henry Campbell?
The case stands upon a demurrer to the. commonwealth’s evidence, “the evidence” being certified, and not “the facts proved.” Code Ya. § 3484, amended by Acts 1891-92, p. 962. This court, in Grayson’s.Case, 6 Grat. 712, and in Blosser v. Harshbarger, 21 Grat. 214, established the rules which are adopted and reaffirmed in Pryor’s Case, 27 Grat. 1009, governing the granting of new trials. They are as follows: First. “Where the verdict is against law. This occurs where the issue involves both law and fact, and the verdict is against the law of the case upon the facts proved. ’ ’ Second. ‘ ‘Where the verdict is contrary to the evidence. This occurs where the issue involves matter of fact only, and the fact proved required.a different verdict from that found by the jury.” Third. “Where the verdict is without evidence to support it. This occurs where there has been no proof whatever of a material fact, or not sufficient evidence of the fact or facts in issue. Where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant the finding of