1. A motion for the continuance of a cause, on the ground of the absence of a material witness, properly overruled under 2. Under the circumstances the prisoner required to state who is William Mull was indicted in the Circuit court of Henrico county for grand larceny in stealing a gold watch and cloak, the property of George B. Goddin. When his case was called for trial he moved the court for a continuance until the next term, on the ground of the absence of James Mull, deemed by him a material witness. This motion for a continuance was made on the 27th of April 1852; and it appears that the cause had been called on the 17th of April, that being the first 1852. June Term. 1852. June Term. Mull's day of the term, and the Commonwealth was then ready for a trial, but the prisoner asked for delay upon the ground that James Mull, his witness, for whom process had not been issued until the 16th of April, had gone to New York in the steamer City of Norfolk on that day, and would return in her on Monday the 26th of April. Whereupon the court, although the process had not been executed, and although it appeared the witness was a brother of the prisoner and lived in his neighbourhood in the city of Richmond, and had been here for the preceding three months continuously, and had not been summoned or examined either before the mayor who committed the prisoner, or the examining court, consented to delay the case until the 27th of April. And now the prisoner being in court and the Commonwealth ready for trial, and it appearing to the court that the steamer City of Norfolk, on which James Mull went away, being employed, as it is reported, as a hand on said steamer, returned to the city on the 26th, but that said James Mull did not return in her, the court required the prisoner to be sworn, and upon his examination he stated that he thought he had other witnesses, some two or three present, who would prove the same facts he expected to establish by James Mull. That he expected to prove by said Mull that the articles charged in the indictment to have been stolen from Goddin, he (said James) had often heard prisoner say, but never in the presence of Goddin, were not the prisoner's property, but were Goddin's; and had been pawned by Goddin to the prisoner. And the prisoner further said that he then had a witness in court, who would prove (having been then and there present) that Goddin had pawned the articles alleged in the indictment to have been stolen. The court overruled the motion and the prisoner excepted. And upon his trial he was convicted and sen And tenced to three years imprisonment in the penitentiary. Whereupon he applied to this court for a writ of error. Scott, for the petitioner. BY THE COURT: The writ of error is refused. COMMONWEALTH V. TAGGART. June 24th. An indictment for unlawfully selling ardent spirits to W will not authorize the proof of selling to C. At the March term 1848 of the Circuit court of Wood county Edward M. Taggart was indicted for unlawfully selling to Edward Welling ardent spirits, without a license, to be drank where sold. On the trial the jury found a special verdict as follows: "We, the jury, find the defendant guilty, provided proof of the selling of ardent spirits to Robert Campbell will sustain the indictment: And if it does not sustain the indictment, then we find him not guilty." With the consent of the defendant the Circuit court adjourned to this court the question: What judgment ought this court to give upon the verdict of the jury? BY THE COURT: Judgment should be entered for the defendant. 1832. June Term. Mull's 1852. June Term. 1852. June Term. COMMONWEALTH . HAMOR & wife. June 24th. 1. Husband and wife may be jointly indicted for a single act of retailing ardent spirits. 2. In such a case, if they are convicted, a fine must be assessed and a judgment rendered against each separately. Seth Hamor and Tasa, his wife, were jointly indicted in the Circuit court of Wood county for unlawfully retailing ardent spirits. The indictment contained but one count, and a general charge that Seth Hamor and Tasa Hamor, his wife, had unlawfully, without having a license therefor, at their dwelling house, &c., sold by retail ardent spirits. The defendants appeared and demurred to the indictment; and the Circuit court, with their consent, adjourned to this court the following questions: 1st. Can a husband and wife be jointly indicted for a single act of retailing ardent spirits? 2d. Can the fine be jointly assessed, and a joint judgment rendered against both the defendants for the same act of retailing? 3d. What judgment ought the court to give on the demurrer to the indictment? BY THE COURT: In answer to the questions adjourned, the court is of opinion and decides: As to the first question, that a husband and wife may be jointly indicted for a single act of retailing spirituous liquors. As to the second question, that the fine cannot be assessed jointly, and a joint judgment rendered against both defendants for the same act of retailing; but the fine should be assessed separately, and judgment ren dered against each defendant. See Commonwealth v. Roy, 1 Va. Cas. 262. As to the third question, the demurrer to the indictment should be overruled and judgment rendered against each of the defendants for 30 dollars; unless they plead. But the court deems it proper to say that whether the wife should be convicted upon the indictment must depend upon the facts proved upon the trial, if defence shall be made. 1852. June Term. Hamor & wife's Case. COMMONWEALTH 2. NUTTER. June 26th. 1. What a sufficient entry on the record of the finding an indict ment for a misdemeanor by a grand jury. 2. What a good indictment for attempting to commit a felony. At the April term 1851 of the Circuit court of Ritchie the record states that the grand jury "returned into court, and, among other things, presented an indictment against Thomas Nutter for felonious assault and battery." "A true bill." The indictment contained five counts: The first charged that Thomas Nutter, on the 22d day of February 1851, in the county aforesaid, with malice aforethought, in and upon one David Kuner, then and there being, feloniously, unlawfully and wilfully did make an assault, and with a certain knife which he, the said Thomas Nutter, in his hand then and there held, and had drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with. said knife, with intent in so doing, wilfully and of his malice aforethought, to kill and murder the said David Kuner, contrary to the form of the statute, &c. 1852. June Term. |