1 Va. Cas. 164 | General Court of Virginia | 1810
The defendant was indicted at the District Court of Morgan Town, in May, 1808. The indictment consisted of three counts, of which the first and third only were found true. The first count set forth that the defendant bearing in his heart great and rancorous malice, and ill will towards John G. Jackson, made an assault on the said John G. Jackson, and him did beat, wound and ill treat, “and that the said John Somerville with a certain hickory club which he the said John Somerville in his right hand then and there had and held did give and strike the said John G. Jackson a grievous blow on the right side of the head of him the said John G. Jackson, thereby maiming and disabling him the said John G. Jackson by fracturing the scull of him the said John G. Jackson, and other wrongs and enormities to the said John G. Jackson then and there did to the great damage, terror, and danger of him, &c., against the peace and dignity of the commonwealth.” The second co^nt was a charge for a simple assault and battery.
The defendant, in September, 1808, filed a plea to the jurisdiction of the court, which set forth as a, cause why the district court should not take further cognizance 165 of *the bill of indictment, that the assault and battery in the last count charged is the same maiming and disabling by fracturing the scull as in the first count is contained and charged, that the offence, if committed, was done in Harrison county, and that after the commitment of the offence, an examining court for Harrison county was held on the said defendant, on a charge of having feloniously, by lying in wait, disabled the head and right arm of Jackson with intent to disable and kill, and that the examining court were of opinion
To this plea to the jurisdiction the attorney for the commonwealth demurred, and there was joinder.
The district court sustained the demurrer, and thereupon the defendant pleaded not guilty, and issue was taken on it.
At the circuit court held for Harrison county in May 1809, the defendant appeared and filed a special plea to the indictment. It was a plea of autrefoits convict, and set forth that Jackson had presented a bill of appeal in Harrison county court for the said mayhem (with which the indictment charged him) against the said John Somerville and others, and had recovered damages to the amount of 388 dollars, against the said Somerville, and therefore that the said defendant was formerly convicted of the said mayhem, and prays judgment and that he be discharged. There was no replication to 167 this plea, but at *the October term, 1809, a case was agreed by the prosecutor and the defendant, by which it was stated “that an action was prosecuted by the prosecutor John G. Jackson against the defendant John Somerville for the same offences charged in the indictment of which the following is a record copy, and submit to the court if it be a bar to the prosecution on the indictment.” Then follows the record of the action which consists of a declaration, plea, issue, verdict and judgment. The declaration contained two counts, the first whereof charged the defendants, that they assaulted the plaintiff in the night time, secretly, and by lying in wait, with force and arms, to wit, clubs, guns, pistols, &c., and beat, wounded, and ill-treated him, to wit, by giving him so many and grievous wounds, blows, and bruises on the head, right arm, and body of the plaintiff, that they broke and fractured his scull, and bruised and disabled his right arm, by reason whereof he was greatly injured and disabled and his life despaired of, and his business neglected, and great expense was incurred in and about his recovery. The second count charged a simple assault and battery. Upon this agreed case being argued, the court overruled the plea of autrefoits convicts.
At the same term another special plea was offered by the defendant. It set forth that he had been examined for the offence charged in the indictment, by a court of justices 168 *for Harrison county, and that upon such examination he was acquitted. This plea of former acquittal, was also overruled by the court. Whereupon the defendant, was tried on his plea of not guilty ; the jury found him guilty, and assessed his fine to-twenty dollars.
The circuit court then adjourned the case to the general court, for their consideration, on the following points.
1st. Whether the first count of the indictment be good.
2d. Whether any plea of a former acquittal' of the offences contained in the first and’ third counts, or either of them is supported by the record of the examining court of Harrison ; which record is certified.
3d. Whether, if such plea mentioned in the second point could have been so supported, the reception thereof was precluded by the-plea in the record contained and overruled by the district court at Morgan Town.
4th. Whether the agreed case and record1 therein referred to and herewith certified, will support the plea filed of a former conviction upon an alleged appeal in Harrison county court.
*The general court, November 13th, 1810, consisting of Judges William Nelson, White, Carrington, Brooke, Holmes, Coalter, Hugh Nelson, and Brockenbrough, declared it to be their unanimous opinion, “1st. That the first count in the indictment in the record referred to, is not a good count for mayhem, but that it is good as a count for an assault of an aggravated nature.”
“2d. That any plea of a former acquittal of the offences in the first and third counts, or either of them, is not supported by the record of the examining court of Harrison county.”
“3d. That it is unnecessary to decide the third point adjourned, as any plea of a former acquittal is not supported by the record.”
“4th. And as to the fourth point, that the-agreed case and record referred to, will not support the plea of a former conviction upon an alleged appeal in Harrison county court.”
