85 Va. 702 | Va. | 1889
delivered the opinion of the court.
The case is as follows : The plaintiff in error was indicted, tried and convicted in the county court of Shenandoah county at the April term, 1888, for the seduction of Mary Alice Rinker, a girl under twenty-one years of age, of a previous chaste character. At the trial he was found guilty by the jury, and his punishment fixed at two years in the penitentiary. Several exceptions were taken during the trial, and, after a verdict, a motion was made to set it aside and grant the accused a new trial, which motion the court overruled; whereupon the plaintiff in error applied for a writ of error to the circuit court of said county, which was refused, but which, upon application, was awarded by one of the judges of this court.
The first assignment of error is, that the county court erred in overruling the motion of the defendant to quash the indictment because the indictment was found by a grand jury consisting of only seven members; that- the fourteenth article of amendment to the Constitution of the United States forbids any State to deprive any man of his liberty exeept by “ due process of law”; that “ due process of law” has a meaning well understood and thoroughly settled by repeated decisions; that an indictment is essential in all felonies, and there can be no indict
The next assignment of error which we will consider is as to the action of the county court in overruling the motion to set
The next assignment of error is, that evidence was admitted of the repeated promises of the prisoner to marry his victim after the seduction had been accomplished. This did not tend to prove the main fact, but it was admissible to support the testimony as to the main fact of the seduction, in explaining the delay in the prosecution of the seducer, and to support the statement of the girl that she had never gone astray with any other man.
The next assignment of error is as to the admission of the testimony of the matron of the lying-in house, concerning the confessions of the accused to her, as stated above. But these admissions were material in support of the statements and evidence of the prosecutrix, and were clearly admissible.
The next assignment of error is, that the attorney for the Commonwealth was permitted to ask the matron of the lying-in hospital a leading question as to the admissions of the accused. In the direct examination of a witness it is not allowed to put to him what are termed leading questions; that is, questions which suggest to the witness the answer desired. This rule, however, says Mr. Greenleaf, is to be understood in a reasonable sense ; for, if it were not allowed to approach the points at issue by such questions, the examination would be most inconveniently protracted. To abridge the proceedings, and bring the witness as soon as possible to the material points on which he is to speak, the counsel may lead him on to that length, and may recapitulate to him the acknowledged facts of the case, which have been already established. Again, says the same learned author: “Indeed, when and under what circumstances a leading question may be put is a matter resting in the sound discretion of the court, and not a matter which can be assigned as error.” Citing Moody v. Rowell, 17 Pick. 498, in which it is
It is also assigned as error that the court overruled the demurrer of the defendant to the indictment, and refused to require the Commonwealth to elect upon which count of the indictment the accused should be tried. The first count in the indictment charges the crime to have been committed on the 24th day of May, 1886, and the second count charges that “afterwards, to-wit, on the 20th day of June, in the year 1886,” etc., the crime was committed. Mr. Bishop, in his work on Criminal Procedure, says: a In the criminal law the pendency o'f one accusation against a man can never be pleaded in bar or abatement of an
In this case each count set forth the same crime as committed on different days, and there was no misjoinder of counts, and the court properly exercised its discretion in not quashing the indictment or either count, and in not confining the evidence to any particular day. Dowdy v. Com’th, 9 Gratt. 727; Lazier Case, 10 Gratt. 710, 712. In the case of Dowdy v. Gom’th, supra, it is said: “ Whether the court should have quashed the indictment or compelled the prosecutor to elect on which count or counts he would proceed, depends upon whether the charges in the different counts ‘ are actually distinct,’ in the language cited by the counsel from Ohitty, c and may confound the prisoner, or distract the attention of the jury.’ There are some cases of felony in which, even though the charges are distinct, the prisoner would not be confounded, or the attention of the jury distracted, and in which, therefore, the charges may properly be included in the same indictment, and tried together ; as, for example, the case of forging and uttering the same instrument, which are distinct offenses, and yet are often charged in different counts of the same indictment.” See People v. Rynders, 12 Wend. 425. Judge Moncure said further, in the case of Dowdy v. Com’th, “ But though there are cases of felony in which several charges, though distinct, may properly be included in the same indictment, I know of no case in which the several counts of an indictment were all for the same offence, and were in themselves good counts, where the indictment of any of the
JüD&MENT AEETHMED.