85 Va. 924 | Va. | 1889
delivered the opinion of the court.
The first error assigned is to the action of the court in overruling the prisoner’s demurrer to the indictment. This assignment of error is not well taken. The indictment is in the words of the statute (section 3680, Code of 1887), and is in exact accordance with the law.
The second assignment of error is to the action of the court in sustaining the replication of the Commonwealth to the prisoner’s plea, averring that he had been held for trial more than four térros after the indictment had been found against him in the county court.
The record, which the prisoner avouched, shows that the fact averred in this plea does not obtain in fact; it shows that the prisoner was indicted at the March term, 1886, of the county court of Henry county; that he was tried and convicted at the May term, 1886, and that upon the prisoner’s own motion the judgment was suspended for sixty days to enable him to apply for a writ of error, which he obtained from the circuit court of Henry county; that on the 23d of October, 1886, the judgment of the county court was reversed and annulled, and a Dew trial awarded to the prisoner by the circuit court of Henry county, to be had in the said county court.
The prisoner, after his conviction in the county court, at its May term, 1886, was not held for trial, but was held for punishment, until the judgment of the county court was reversed and annulled by the circuit court, whose order, made October 23d, 1886, remanded the prisoner to the county court for a new trial, where he was held for trial during the months of November and December, 1886, and January, 1887; at the February term, 1887, the prisoner was granted a continuance, upon his own motion, until the March term, 1887, when he was tried and convicted and sentenced to the penitentiary for fifteen years. From this judgment the prisoner obtained a writ of error and supersedeas from the circuit court of Henry county, and upon the
The third assignment of error is the rejection by the court of the prisoner’s plea No. 2 ; which was properly rejected by the court because it set up no defense, and presented only the same issue presented in his plea No. 1, in different words.
The fourth error assigned is the ruling of the court permitting the prosecutrix, Josephine Hairston, to testify, against the
At the trial and conviction of the prisoner, October, 1888, the witness was in her twelfth year; she was closely and critically examined by the court to determine her capacity and competency as a witness for the prosecution; the trial judge was satisfied, and admitted her to testify; hut, out of abundant precaution, specially instructed the jury that they were the judges of her credibility. The jury was satisfied, and found the prisoner guilty; as he had been three times theretofore found to be by juries of the vicinage. This court will not interfere upon this ground. 1 Gfreenleaf’s Evidence, sec. 367, et seq.
The fifth error assigned is to the overruling hy the court of the prisoner’s motion to set aside the verdict because it was contrary to the law and the evidence.
Without going into a recital and analysis of the painful and shocking details of the evidence in this record, upon which forty-eight sworn jurors have found the prisoner guilty, and upon which the judge of the circuit court, who saw and heard and tested the witnesses and weighed the evidence, has based his judgment, it is enough for this court to say, that the evidence certified in this record is conclusive of the prisoner’s guilt. He was not only clearly and fully identified by the child-victim, as the perpetrator of the brutal outrage which was inflicted upon her; but he was proved to have been polluted with the foul disease which was imparted to the child by her ravisher; and he was proved by sundry witnesses to have been at the place and time, where and when the atrocious deed was done.
There is no error in the judgment of the circuit court of Henry county complained of, and it is affirmed.
Judgment aeeiemed.