85 Va. 607 | Va. | 1889
delivered the opinion of the court.
The case was not argued here by the attorney-general, who stated that he doubted the propriety of the action of the judge of the said corporation court in the matter set forth in the ninth hill of exceptions, but would submit the question for the court’s decision, which is as follows: That after the evidence and argument of counsel, the case was submitted to the jury without instruction being asked by either side, and the jury retired to consult of their verdict, and after about four hours were sent for by the judge and asked for their verdict. They responded that they had not agreed upon a verdict, and the foreman then said that some of the jury “would like to have a ‘reasonable doubt ’ defined ” ; whereupon the counsel for the defendant asked two instructions. The court gave one and rejected the other; and the Commonwealth’s attorney asked one, which was given. The
The tenth assignment of error is, that the court refused to set aside the verdict and grant a new trial upon the motion of the accused; and the evidence is certified, which, hy law, will be considered in this court as upon a demurrer to the evidence by the plaintiff in error. The case upon the evidence is, briefly, that on the night of the 14th of May, lSSI (there having been a circus performance in the city of Alexandria that day), two men were hanging about a restaurant, in the night-time, which had taken in a good deal of money during the day, and approached a witness on the sidewalk and asked the time at twenty minutes before twelve o’clock, one standing off and avoiding observation, and moving off when approached, and both going in during the evening and calling for drinks. For some cause, which we cannot know, as he was slain that night, Policeman Arnold had his suspicions aroused concerning these men, and they, for some cause not explained, went off and hid themselves in the circus lot, and iu the ring now altogether vacated by the circus, which had left, and one laid down under the edge of the raised earth on the south side of the ring, the other on the north side of the ring. Policeman Arnold called on the witness, Padgett, to go and assist in making an arrest, and went with Padgett to the ring, gave Padgett his club, and he kept his pistol. As they neared the ring, Arnold said to Padgett, “ You take the man on the south; I will take the one on the north.” Witness knocked his man down, and finally took him, with help; but Arnold was shot and killed by the other man, who retreated and got away. The man taken was Ourran, and the prisoner and Ourran had been seen together and recognized by a witness, who knew them both well, during the evening of the day of the homicide. Other witnesses identify the prisoner (though not with equal certainty) as being the man with Ourran, hanging around the restaurant and avoiding observation, and moving off to avoid being seen; and by one witness who saw
The first exception assigned here as error is, that when the prisoner’s associate, Curran, was tried, the prisoner was a fugitive, and could not he tried, and Curran was acquitted, and that therefore the prisoner was acquitted. The court overruled his plea to this effect, and did not err in so doing. The record distinctly shows that Curran alone was tried, and that the prisoner was at large, and he has himself so testified. The second exception is as to the admission of F. J. Davidson upon the venire. Upon his examination upon his voir dire Davidson had said that he had read the evidence at the trial of Curran, and had formed an opinion, hut not a positive one, and that it would not influence his judgment on the trial; that he had no prejudice
This disposes of all the errors assigned, and we see no ground for reversing the judgment. Whatever maj'’ be the grievance of this much-prosecuted and often-convicted criminal, he has no
Judgment aeeirmed.