86 Va. 573 | Va. | 1890
delivered the opinion of the court.
This case is a prosecution against the plaintiff in error under chapter 187 of the Code of Virginia for keeping a lottery, selling lottery tickets, and promoting and managing a lottery, who, being indicted, tried, and convicted therefor, applied for and obtained a writ of error to this court.
1. The first ground assigned as error is that the court refused to grant to the plaintiff in error a continuance of his case; that the matter of continuances is one within the discretion of the trial court, but that discretion must be exercised soundly, and not arbitrarily, and that the exercise of that discretion in this case operated to the disadvantage of the plaintiff in error, as the refusal of the court to grant his motion for a continuance forced him into an instantaneous trial and deprived him of all opportunity to prepare for his defence. This assignment of error is sufficiently answered by section 4010 of chapter 196 of the Code of Virginia, which is as follows: “Sec. '4010. On any indictment or presentment not embraced in the preceding section [which is as to petty fines], founded on any provision of chapter one hundred and eighty-seven [gaming act], or on a violation of any provision of the laws relating to the public revenue, process shall be issued immediately. If the accused appear and plead to the charge, the trial shall proceed without delay.” In this case the accused appeared and pleaded to the charge, and the trial did proceed without delay. The law was complied with, and the continuance asked for was properly refused, and there is no error in this assignment.
2. The second assignment of error is that the court erred in overruling the motion of the accused to quash the indictment because the record did not set forth the appointment and oath of the foreman.
4. The fourth assignment of error is that the court erred in rejecting the second plea of the accused, by which it is set forth “ that after the said grand jury had been impaneled, and had retired to their rooms for the purpose of diligently inquiring into, and true presentment making of, all such matters as might be given to them in charge, or come to their knowledge, touching violation of the laws of this commonwealth, including the matter alleged in this, indictment; and while the presentment and this indictment of this defendant was being considered and deliberated upon by the said grand j ury, one George E. Bowers, who was not then, and is not now, the commonwealth’s attorney of said city, nor an officer, nor a sw:orn
It has been held that the presence of a person not a member of the grand jury during its deliberations will be ground for setting aside the indictment. 9 Amer. & Eng. Cyclop. Law, 2d vol., 16, “ Grand Juries,” citing Rothschild v. State, 7 Tex. App., 519; State v. Watson, 34 La. Ann., 669. The plea in this case was properly rejected by the court because (1) it does not allege that the person stated was not a witness sworn aud sent to the grand jury by the court, and (2) because it does inferentially allege that he was a witness, because it states that he examined other witnesses; but, if this were otherwise, this court cannot reverse the corporation court, because no exception was taken to this ruling of the court. The record states that the plea was rejected by the court, and there is a general allegation that the “ defendant excepted to various rulings of the court.” But there is no bill of exceptions as to this, and this applies with equal force to the first, second, and third assignments of error briefly considered above. Roanoke Land and Improvement Co. v. Karn, 80 Va., 589; Magarity v. Shipman, 82 Va., 806. Mr. Minor (4 Inst., 746) says as to this: “ When the ground of complaint is that evidence or pleas have been improperly excluded, the bill of-exceptions must showatfirmatively the relevancy of the evidence and the propriety of the pleas, or else an appellate court, perceiving what the action of the court below was,-and not discovering that it was wrong, will presume it to have been right.” See Courtney v. Commonwealth, 5 Rand., 666; Rowt v. Kile’s Adm’r, 1 Leigh, 216; White v. Toncray, 9 Leigh, 347; Herrington v. Harkins, 1 Rob., 591; Bowyer v. Hewitt, 2 Gratt., 193; Johnson v. Jennings, 10 Gratt., 1; Fitzhugh v. Fitzhugh, 11 Gratt., 301; Dick
As to the fifth assignment of error, which is as to the action of the corporation court in overruling the motion of the plaintiff in error to set aside the verdict and grant a new trial, the evidence is certified in a bill of exceptions, and the verdict, from an inspection of the said evidence, appears to be fully sustained, and the action of the corporation court in overruling this motion appears to be plainly right. Indeed, this was admitted at bar by the counsel for the plaintiff in error, and that point waived.
We are for the foregoing reasons of opinion that there is no error in the judgment of the corporation court, and the same must he affirmed.
•Judgment aeeirmed.