85 Va. 128 | Va. | 1888
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Wythe county, rendered at the March term, 1888. The case is as follows: The plaintiff in error, Wayrnan Sutton (together with one Morgan Pendleton), was indicted in the county court of Wythe county, at the July term, 1887, for the killing of one Peter Harvell on the 19th of Ma}q 1887. At the November term following, the said Sutton having been arrested, and being in custody, upon the calling of his case moved to quash the indictment, which motion was overruled; and, being arraigned, upon bis arraignment pleaded not guilty, and elected to be tried in the circuit court Of said county; whereupon he was remanded to the said circuit court for trial. At the March term, 1888, he was brought before the said circuit court upon the certified transcript of the record in the county court, where he was tried and convicted of murder in the first degree, and sentenced to be
The first assignment of error here is to the refusal of the circuit court to arrest the judgment, upon the ground that the said court was without jurisdiction to try the case, because the case could only be brought to the circuit court when the accused, upon his arraignment in the county court, had elected to he tried in the circuit court; and whereas, the said accused had elected to be tried in the said circuit court, he had so elected at the wrong time; because the statute provided that he should so elect upon his arraignment in the said county court, whereas he had elected to be tried in the circuit court after his arraignment. That, when arraigned in the county court, he had pleaded not guilty, and had then elected to be tried in the circuit court And also it was moved in arrest of judgment that the circuit court should not pronounce judgment because the accused had not been arraigned, and had not pleaded in that court; which motion the circuit court likewise overruled, and the accused excepted; which ruling is also assigned as error. Our law provides (Acts 1877-78, ch. 17, § 1, p. 339), that a person, to be tried for any felony for which he may be punished with death, may, upon his arraignment in the county court, demand to be tried in the circuit court having jurisdiction over the county for which said county court is held ; and that in a circuit court, when the indictment and other papers have been certified and transmitted to the clerk thereof as stated, the
Under the law, “ upon his arraignment he may demand to be tried in the circuit court.” He did make his election, and demanded to be tried in the circuit court before any part of the trial had been had in the county court, and the trial was had in all its parts in the circuit court, upon his motion. Ho question whatever was determined in the county court. His.whole election under the law is to be tried in the circuit coiirt, and upon his demand this was done. The law is that, upon his arraignment in the county court—that is, when his case is called in the county court, and he called to its bar to answer—he may demand to he tried in the circuit court. He is not in terms forbidden to plead in the county court, and then to remove the case. It is probable and legitimate, from the language used, to argue that the legislature contemplated no other step in the county court than the calling of the case for trial in that court, and the exercise of the election ; but his filing his plea there of not guilty was his own act, which he never sought to change nor to correct. He did not ask to be allowed to withdraw the plea either in the county court or in the circuit court, and to file others, or to make other defense; and it does not appear that auy right of his has been denied or abridged. He demanded to be tried in the circuit court, and he was there tried, and he has suffered no injury. The county court might, perhaps, have refused to recognize his demand to be tried elsewhere until the plea in that court had been withdrawn. Hut no such ruling was made, and his case was removed upon his own motion; and he cannot be heard to complain of this after verdict, which, in any event, cannot be regarded as matter of substance. We are of opinion that no injury has resulted to the accused on this account, and this assignment is overruled.
The second assignment of error is as to the action of the court, in refusing to set aside the verdict because the Commonwealth’s attorney had commented on the failure of the accused to testify in his own behalf. The law prohibits the Commonwealth’s
The third assignment is as to the refusal of the court to exclude the evidence of the sheriff as to statements he heard the accused make to a friend, the sheriff not hearing the whole conversation. The statements bore upon the charge against the prisoner, and were admissible as his own confessions; but they were such as amounted to nothing, and this motion was properly overruled.
The next assignment of error is as to the action of the court in instructing the jury. But the only exception which appears in the record is as to the modification of the fourth instruction asked for by the plaintiff in error; it being asked that the court should instruct the jury that, “in all cases when the proof is circumstantial evidence, the time, place, means, opportunity, motive and conduct must all concur in pointing out the accused beyond reasonable doubt as the guilty agent.” The court interlined, after “conduct,” “or such of these facts as may be proved with other facts, if any.” This appears to have been a proper amendment. It is not necessary, for illustration, to prove a motive. The crime may be clearly established and no motive even discovered. We may add, however, that the instructions, as given by the court, do not appear to be erroneous, but correctly expound the law, although they were not excepted to.
The evidence in this case, considered under the foregoing .rule of decisions, is that the deceased, Peter Harvell, on the 19th of May, 1887, was at his home in Wythe county, to-which he had retreated the day before, wounded and disabled from an armed assault made upon him in the adjoining county of Smyth by others, at his then home. The accused on that day came into the immediate vicinity of Peter Harvell’s house, disguised with painted face, in company with his father-in-law, one Morgan Pendleton, also disguised with his face painted. That they inquired for Peter Harvell’s house, into which he had just moved. The accused said the witness need not he afraid to talk; they
Judgment aeeirmed.