78 Va. 287 | Va. | 1884
delivered the opinion of the court.
The plaintiff in error was indicted in the county court •of Elizabeth City county for the murder of Thomas C. Phillips, and having upon his arraignment demanded to be tried in the circuit court of that county, he was accordingly tried in the latter court, found guilty of murder in "the second degree and sentenced to confinement in the penitentiary for a term of sixteen years. Four errors are assigned in the petition to this court for a writ of error to the judgment of the circuit court. The subject of the first assignment of error is the refusal of, the county court to change the venue, upon the application of the prisoner, before the transfer of the case to the circuit court. The application, was made before his arraignment, and was based upon the ground of alleged bitter and general prejudice in the county against the prisoner, rendering it impossible for him to obtain a fair and impartial trial either at the hands of a jury selected from the said county, or brought thereto from another county or corporation. The county court overruled the motion, on the ground that in advance of the arraignment of the prisoner, the motion was premature.
The second error assigned is the refusal of the county court to grant the prisoner’s motion for a continuance of the case. The motion was based upon the ground that the prejudice and excitement in the county was so strong and general against him as to render it unsafe for him to go to trial at the term at which the motion was made. And in support of the motion he offered in evidence certain affidavits, but the court overruled the motion, and refused to consider the affidavits, on the ground that the motion could not be entertained before the arraignment of the prisoner, and his election of the court for his trial.
The statute (Acts of Assembly 1877-78, 339-40) provides that “when an indictment is found, or other accusation filed, against a person for felony, in a court wherein he may be tried, or in a circuit court, when the indictment and other papers have been certified and transmitted to the clerk thereof, . . . the accused, if in custody, or if he
The affidavits offered in support of the motion set forth, that a bitter and general prejudice prevailed against the prisoner throughout the county, and that in consequence thereof a fair and impartial trial of the case could not be had at that time.
It is plain that while under the provisions of the statute just quoted, it was competent for the prisoner to move for a continuance before his formal -arraignment, yet that no good cause therefor was shown by the affidavits offered by him, and which are copied into the record. If the state of public feeling against him was, in fact, as set forth in the affidavits, it was merely a matter of opinion on the part of the affiants that a fair trial in consequence thereof could not be then obtained, and certainly of itself did not constitute a ground for a continuance of the cáse. The prisoner, therefore, was not prejudiced by the refusal of the court to entertain his motion for a continuance, and the second assignment of error is not well taken.
The third assignment relates to the action of the circuit court in admitting at the trial testimony relating to an altercation between the prisoner and one Eeidy, which occurred on the night of the homicide, a few minutes prior thereto, at Woods’ bar-room, in the town of Hampton, and a short distance from Barnes’ bar-room, where the homicide was committed. The testimony was admitted, against the objection of the prisoner, as part of the res gestee, for the purpose of showing motive on his part in the alleged shooting of the deceased.
Facts which constitute the res gestee, must be such as are so connected with the very transaction or fact under investigation as to constitute a part of it. Haynes’ Case, 28 Gratt. 942. Tried by this well-settled test, the testimony in
And as for this error the judgment must be reversed and a new trial awarded, the fourth assignment of error, relating to the refusal of the circuit court to set aside the verdict and grant a new trial, need not be considered.
Judgment eeveesed.