
    
      Brooks v. The Commonwealth.
    
    December, 1843.
    Penitentiary Convict — Former Conviction — Continuance. — A report being made to the circuit court of Henrico by the superintendent of the penitentiary, pursuant to the statute 1 Bey. Code, ch. 171, 11(5, that a convict received into the penitentiary is the same person mentioned in the record of a former conviction, and that he has not been sentenced to the punishment prescribed by law for his second offence, the court continues the case at several successive terms, in the absence and without the consent of the convict; after which he is brought into court for the first time, and his iden tity being duly ascertained, he is sentenced to the proper punishment of his second oflence: Hem), such continuance of the case furnishes no ground of objection to the judgment
    Same — Same—Jurors—Peremptory Challenge. — upon an enquiry, in pursuance of the statute 1 Bey. Code. ch. 171, § 16, whether a convict received into the penitentiary be the same person mentioned in the record of a former conviction, the prisoner has no right to challenge peremptorily any person called as a juror.
    On the 18th of April 1829, Elijah W. Brooks, having been convicted, in ¡.he superior court of law for Rockbridge county, of murder in the second degree, was sentenced by the court to imprisonment in the penitentiary for twelve years, the period ascertained by the jury in their verdict.
    On the 28th of May 1842, Elijah Anderson, having been convicted, in the circuit superior court of law and chancery for Kanawha county, of grand larceny, was sentenced by that court to imprisonment in the penitentiary for two years, the period ascertained by the jury in their verdict.
    On the 22d of July 1842, Charles S. Morgan, superintendent of the penitentiary, made a report to the circuit superior court for the county of Henrico and city of Richmond, setting forth, that Elijah W. Brooks, mentioned in the record of the first conviction, was one and the same person with Elijah Anderson, mentioned in the record of the second conviction ; that it ap-846 peared, *from the face of the record of the last trial and sentence, that the said Elijah W. Brooks, alias Elijah Anderson, had not been sentenced to the punishment prescribed by law for his second offence aforesaid; and that he was now in the custody of the said superintendent, ready to be proceeded against according to law.? 847 ^Whereupon, on the motion of the attorney for the commonwealth, it was ordered that the case be continued till the next term to be holden for the trial of criminal causes.
    No other proceeding1 was had in the case until the 25th of April 1843;. when, at the instance of the attorney for the commonwealth, and for reasons appearing to the court, the case was again continued till the next term to be holden for the trial of criminal causes.
    On the 4th of November 1843, the prisoner was brought into court by the superintendent of the penitentiary; whereupon the attorney for the commonwealth filed an information against him, setting forth the proceedings and conviction had for each of the offences aforesaid, and charging that the said Elijah W. Brooks, alias Elijah Anderson, is the same identical person mentioned in each of the several records; that he has not been sentenced to the punishment by law prescribed for his said second offence; and that the question of Bis former conviction before the superior court of Rockbridge was not made and decided on his last trial before the circuit superior court of Kanawha. The prisoner being thereupon required to say whether he is the same person mentioned in each of the records of conviction in the information set forth, or not, pleaded that he is not the same person so mentioned in each of the said records. A jury of bystanders being then impaneled and sworn to try the question of identity, found that the said Elijah ■W. Brooks, alias Elijah Anderson, was the same identical person mentioned in each of the said records of conviction; arid they ascertained the term of his imprisonment in the penitentiary to be fourteen years and ten months, to commence from the ISth of June 1842.
    At the trial, Henry A. Holmes, a bystander, being called and about to be sworn as a juror, the prisoner offered to challenge him peremptorily; but the court 848 *refused the prisoner the right of peremptory challenge, and put him to his challenge for cause: to which opinion he excepted.
    Being brought into court on a subsequent day of the term to receive his sentence, the prisoner prayed the court to arrest judgment on the verdict aforesaid, for the following reasons: “Because he says it will appear from an inspection of the record in this cause, that he has not had, as by law he ought to have had, a trial of the issue made up on the information aforesaid, without delay, as is required by the provisions of the act. Because it appears by the record in this cause, that before any notice had been given to the said prisoner, without any warrant issued, before his arraignment or appearance in court by counsel or in person, on friday July 22d 1842, the superintendent of the public jail and penitentiary house made a report in writing to this court, stating that the prisoner had been received into the said jail and penitentiary house, having been a second time convicted and sentenced to confinement therein; and on the same day and year last aforesaid, on the motion of the attorney for the commonwealth, this court ordered this cause to be continued until the next term thereafter to be holden for the trial of criminal causes; the said prisoner having had no notice whatever of any proceedings theretofore had against him, nor of the said motion for a continuance of his said cause. And the said prisoner further saith, that it appears from the record in this cause, that on tues-day the 25th day of April 1843, his said case was, on the motion of the attorney for the commonwealth and for reasons appearing to the court, continued till the next term thereafter to be holden for the trial of criminal causes; which said continuance was had and ordered in the absence of the said prisoner, before his arraignment, without any warrant having been issued to bring him into court. And it does 849 not appear that *in this cause any warrant has ever been issued, or any notice given the said prisoner of the pending prosecution, before the present term of the court, at which for the first time he has been arraigned to plead to the information aforesaid; so that, in this indirect way, great delay has been operated in bringing on the trial of the issue made in this cause, without his knowledge or consent.”
    After argument of the errors filed in arrest of judgment, the court overruled the same, and pronounced sentence against the prisoner according to the verdict.
    He now applied by petition to the general court for a writ of error to the judgment.
    Munford for the petitioner.
    
      
      For monographic note on Penitentiary, see end of case.
    
    
      
      For monographic note on Identity, see end of case.
    
    
      
      See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
       See (†) on page 838.
      §The proceeding's in this case were had in pursuance of the 16th section of the penitentiary law, 1 Bev. Code, ch. 171. p. 619, 20, which provides, that “whenever any person shall be received into the said jail and penitentiary house, having been a second or third time convicted and sentenced to confinement therein. and it shall appear upon the face of the record of the last trial and conviction, that such person hath not been sentenced to the punishment above prescribed for such second or third conviction, and that the question, of such former conviction or convictions hath not been made and decided on such last trial; it shall be the.duty of the keeper of such jail and penitentiary house to give information, without delay, to the superior court of law for Henrico county, that such person so convicted hath been received. It shall thereupon ! be the duty of such court, at the same term, by j warrant directed to the said keeper, to cause such convict to be brought before the court; and, upon an information filed, setting forth the several records of conviction, and alleging such convict to be the same identical person mentioned in each, such convict shall be required to say whether he is the same person so mentioned in each of the said rec- ! ords or not; if he plead that he is not, or remain 1 silent and will not plead at all, his plea or his silence ! shall be entered of record; and thereupon a jury of bystanders shall be impaneled and sworn to en- ‘ quire and say, whether such convict be or be not the same identical person mentioned in each of the said records of conviction, ff, upon such enquiry, the jury find that such convict is not the person mentioned in the records as aforesaid, he shall be remanded to the said jail and penitentiary house, to be confined as ii he had not been removed as ! aforesaid; but if the said jury shall find that the sa,id convict is the same person mentioned in the j said records of conviction, or if the said convict, in j open court, shall acknowledge, after being duly j cautioned, that he is the same person mentioned as ; aforesaid, then the said superior court of law shall \ pronounce sentence upon the said convict, of confinement in the said jail and penitentiary house as is herein provided; and such sentence shall be executed, as all other like sentences of the said court, t Nothing herein contained shall be construed to in- ; hibit the said superior court of law from granting j continuances of any case so brought before them.”
      I —Note in Original Edition.
    
   SMITH, J.,

delivered the opinion of the court. — The petitioner assigns two errors, as cause to entitle him to a reversal of the judgment of the circuit court: 1st. that the case was continued by the circuit court in his absence and without his consent; 2. that he was denied the right of peremptory challenge to the jurors sworn to enquire whether he was the same identical person mentioned in the several records of conviction.

As to the first point it may be remarked, that it is only where a party is ruled into trial improperly, that an error of the court in deciding on a motion for a continuance can be corrected by a superior court. If the error be in continuing the case improperly, the only effect of it is the delay of the case: it is not a discontinuance; nor could it be a good reason for setting aside a judgment at a subsequent term, when a full and fair trial had,been given to the prisoner. This objection, therefore, affords no ground for reversal of the judgment.

As to the second point, it will be found that at common law a peremptory challenge is not allowed in any 850 *case except upon the plea of not ' guilty, and no peremptory challenges are ever allowed on the trial of collateral issues. So we find it stated by the elementary writers: see 1 Chitty’s C. L. 535; 3 Bac. Abr. Juries, E. 9, p. 762. The case of The king v. Radcliffe, 1 W. Black. 6, may also be referred to as precisely similar to this case. The prisoner had been convicted of high treason; and upon a collateral issue, that he was not the same person, a peremptory challenge was insisted upon, which was refused by Eee, C. J. Other cases might be referred to; but it is deemed unnecessary. It seems very clear that there was no error in the decision of the circuit court upon this point.

The writ of error is therefore refused.

PENITENTIARY.

Guaranties in Bill of Rights Not Applicable to Convicts. — The guaranties included in the hill of rights have reference to freemen, and are not applicable to persons convicted of crime and confined in the state penitentiary. A convicted felon has only such rights as the statutes may give him. Ruffin v. Com., 21 Graft. 790. See monographic note on “Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.

Offences Committed by Convicts — Where Triable. — A person convicted of felony and sentenced to confinement in the penitentiary, is, until the time of his imprisonment has expired or he has been pardoned, in contemplation of law, in the penitentiary, though he may have been hired out to work on a railroad, or the like, in a distant county; and the law relating to convicts in the penitentiary still applies to him. Thus in a case in which a convict was hired to work on a railroad in Bath county, and in attempting to escape he killed the man placed by the contractor to guard him, it was held that he might he tried, before the circuit court ot the city of Richmond, and by a jury summoned from that city. Ruffin v. Com., 21 Gratt. 790.

Proceedings against Escaped Convicts. — The proceeding's against an escaped convict must he by indictment. Com. v. Ryan, 2 Va. Cas. 467 (1824).

Punishment for Escaped Convicts. — The punishment for convicts escaping from the penitentiary is prescribed by §54 of the penitentiary act. The punishment consists in such additional confinement and hard labor, and such additional corporal punishment, not extending to life and limb, as the court before whom such person shall be convicted of such escape shall, in the exercise of a sound discretion, adjudge and direct. Com. v. Ryan, 2 Va. Cas. 467.

Proceedings to Sentence Convicts for Increased Punishment for Second Offence. — Sections 4179, 4182, Va. Code 1887, provide that if a person sentenced to the penitentiary and received therein shall have been before sentenced to like punishment, and the record of his conviction does not show that he was sentenced under §§ 8905, 8906, requiring sentence for an increased term in such case, the superintendent of the penitentiary shall tile an information in the circuit court of Richmond to require the convict to say whether he is the person formerly convicted and sentenced; and if he remain silent, or deny such identity, a jury of bystanders shall be summoned to try the issue thus raised, and upon a verdict against him the prisoner shall be sentenced to such further confinement as is prescribed by chapter 190. Such provisions are constitutional, as the prisoner is not in the position of one charged with crime in the first instance, with all the presumptions of law in favor of his innocence, and a writ of habeas corpus asking for his discharge from such additional punishment will be denied. King v. Lynn, 90 Va. 345, 18 S. E. Rep. 439.

Upon an inquiry, in pursuance of the statute (1 Rev. Code, ch. 171, § 16), whether a convict received in the penitentiary be the same person mentioned in the record of the former conviction, the prisoner has no right to challenge peremptorily any person called as a juror. Brooks v. Com., 2 Rob. 845.

Same — Continuance in Absence of Convict Does Not Invalidate Judgment. — Where a report was made to the circuit court of Henrico by the superintendent of a penitentiary, pursuant to the statute (1 Rev. Code, ch. 171, § 16), that a convict received into the penitentiary was the same person mentioned in the record of a former conviction, and that he had not been sentenced to the punishment prescribed by law for the second offence, and the court continued the case at several successive terms, in the absence and without the consent of the convict, after which he was brought into court and sentenced to proper punishment for his second offence, it was held, that such continuance of the case furnished no grounds of objections to the judgment. Brooks v. Com., 2 Rob. 845.

Same — Sentence to Solitary Cells. — A convict in the penitentiary, against whom an information is filed in superior court of law for Henrico, under § 16 of the penitentiary act. charged with haying been received a second time into that prison for a second offence, may. on being identified either by verdict or by confession, be sentenced by the court to a portion of confinement in the solitary cells. Com. v. Bryant, 2 Va. Gas. 465 (1824).

Convict Working on Road — Liability of County for His Torts. — An action cannot be maintained against a county for personal injuries, caused by the negligence of a convict of the state penitentiary, while working on a public road under the direction of the county, because the county, being a part of the sovereign power, cannot be sued in the absence of a statute giving right to sue in such case. Fry v. County of Albemarle, 86 Va. 195, 9 S. E. Rep. 1004.

Liability of Present Government for Purchases by Penitentiary Agent of Richmond Government. — Where the store-keeper of the penitentiary, elected prior to 1861, purchased leather to be manufactured by the convicts in the penitentiary — the store-keeper and the seller both recognizing the authority of the Richmond government — it was held that the seller, not having been able to obtain payment from the Richmond authorities, could not recover from the present government of Virginia in a suit instituted in 1866. Com. v. Chalkley, 20 Gratt. 404. See also, De Rothschilds v. Auditor, 22 Gratt. 41.

Liability of Sureties of Agent for Debts Contracted with His Predecessors. — By § 57, ch. 206, Code 1873, it is provided that the genera] agent of the penitentiary and his sureties shall be responsible for the amount of all debts for goods or work contracted with him on his authority, and for all money received by him as such agent, except as therein provided. There is no law making it a part of his duty to collect debts contracted with his predecessors, and moneys so collected are not covered by his bond, and are not chargeable to his sureties. Loving v. Auditor, 76 Va. 942.

Funds Received by Agent in Excess of Appropriations —Sureties Not Liable--Tbe constitution of Virginia (art. 10, § 10) declares that no money shall be paid out of the treasury except in pursuance of appropriations bylaw. Where thegeneral agent of the penitentiary receives $12,500 pursuant to appropriations made before or after receipts, and $5,000 in excess of appropriations, the sureties are liable for the first, but not for the last, sum. Loving v. Auditor, 76 Va. 942.

Purchases by Penitentiary Agent — Liability of Sureties.-Where the general agent of the penitentiary buys raw material for the state and gives therefor his note signed by himself with the letters “G. A.” (meaning general agent) appended, but the state assumes the liability and pays the notes, the general agent and sureties are entitled to no credit therefor, as for material purchased on his individual responsibilities. Loving v. Auditor, 76 Va. 942.

Statutory Provisions in Regard to Signing Drafts Drawn by Penitentiary Agent. — If, by the provisions of the Code 1873, ch. 206, § 58, the legislature intended all drafts drawn by the general agent of the penitentiary to be certified by the superintendent and countersigned by the governor, a failure to certify and countersign the drafts does not affect the liabilities of the sureties for money so drawn and received by him. These provisions are merely directory to such officers, and form no part of the contract with the sureties. Loving v. Auditor, 76 Va. 942.

Reduction of Compensation of Penitentiary Agent-Statute. — The legislature having reduced the salary of the general agent of the penitentiary, he and his sureties are entitled to credit for the reduced compensation, and not for the compensation at the rates allowed by law in force at the dates of the official bonds. But as by act, which became law July 1,1878, the legislature restored the compensation as allowed by Code 1873, ch. 13, § 23, credit must be allowed after that date at the original rates. Loving v. Auditor, 76 Va. 942.

flisappropriation of Private Funds by Penitentiary Agent. — Where the agent of a penitentiary receives funds from private parties for the purpose of building a chapel for convicts, his sureties are not chargeable for a misapplication of these funds. Loving v. Auditor, 76 Va. 942.

IDENTITY.

I. Identity of Names.

1. Presumption from Identity of Names.

2. Difference in Mode of Spelling Names.

II. Identity of Accused in Criminal Cases.

1. Must Be Established.

2. Examining Person or Garments of Accused.

3. Opinion Evidence.

4. Hearsay Evidence.

5. Burden of Proof.

III. Identity of Persons Making Admissions.

I. IDENTITY OF NAMES.

1. PRESUMPTION PROM IDENTITY OP NAMES. —Prom the fact that the names of two persons are the same, the presumption of the identity of the persons will arise. Thus in a case in which the names of the plaintiff and of the defendant appeared from the record to be identical, the court held that this was sufficient to raise the presumption that the same person was both plaintiff and defendant in the case. Sweetland v. Porter, 43 W. Va. 189, 27 S. E. Rep. 362. In another case in which the name of the trustee in a deed of trust and that of the notary public, who took the acknowledgment, were the same, it was held that the presumption that they were the same person would have in some way to be rebutted or denied in order for the acknowledgment to be valid. Tavenner v. Barrett, 21 W. Va. 666.

2. DIFFERENCE IN MODE OP SPELLING NAMES. — In identity cases the courts attach but little importance to the concurrence or difference in the mode of spelling a name. Thus in a case in which the heirs of a Scotchman, who died in Virginia, were seeking to establish their identity, and their claim to the estate, the court said: “Much reliance has been placed upon the different spelling of the name. We should attach but little importance to the dropping of a single letter in the spelling of the name were the spelling uniform in one way in Virginia, and uniform the other way in Scotland. Such changes are too common to be of much weight in questions like that before us. But the spelling of the name in this case is not uniform in either country. * * * The diversity in the spelling of the name existed in both countries, and no importance should be attached to it.” Adie v. Com., 25 Gratt. 712.

II. IDENTITY OF ACCUSED IN CRIMINAL CASES.

1. MUST BE ESTABLISHED. — The question of identity is presented in every criminal prosecution. That is, it devolves upon the commonwealth to show that the accused is the person who committed the crime. This it may do in several ways, the simplest of which is by the testimony of persons who saw the crime committed. It is most frequently done, however, by the'means of circumstantial evidence. Por example, where it is shown that a crime has been committed by the use of certain tools and instruments, it is always pertinent to show, as one element connecting the accused with the crime charged, that he possessed such tools and instruments. Nicholas v. Com., 91 Va. 741, 21 S. E. Rep. 364; McBride v. Com., 95 Va. 818, 30 S. E. Rep. 454.

But the mere failure of the evidence to disclose any other criminal agent than the person accused is not a circumstance which may be considered by the jury in determining whether he is or is not the person who committed the crime; for the prisoner is presumed to be innocent until his guilt is established and he is not to be prejudiced by the inability of the commonwealth to point out any other criminal agent. McBride v. Com., 95 Va. 818, 30 S. E. Rep. 454. See also. Smith v. Com., 21 Gratt. 809; monographic note on “Homicide” appended to Souther v. Com., 7 Gratt. 673.

2. EXAMINING PERSON OR GARMENTS OP ACCUSED. — While the defendant in a criminal case cannot be compelled to connect himself with the crime by act or words, by the better doctrine he, or his garments, may be examined for evidence of the crime. Thus in State v. Baker, 33 W. Va. 319, 10 S. E. Rep. 639, it was held proper for the jury to take into consideration the fact that the trousers of the accused, which had been delivered to the sheriff by the prisoner without objection, contained blood stains. See monographic note on “Constitutional Law” appended to Adcock v. Com., 8 Gratt. 661.

3. OPINION EVIDENCE — A witness who testifies that he knows the person in question may be asked his belief as to the identity of such person. It is not a case of expert testimony, but depends upon the observation and knowledge of the particular witness in the given case, to go to the jury for what it is worth, no matter what his science, skill or experience may be in identifying persons. Indeed it is the constant practice to receive in evidence the belief of any witness as to the identity of a person, provided he has any knowledge of such person. State v. Harr, 38 W. Va. 58. 17 S. E. Rep. 794; Hopper v. Com., 6 Gratt. 684, and foot-note.

4. HEARSAY EVIDENCE — It is generally held that hearsay evidence is inadmissible in order to establish the identity of a person ; and in criminal cases it is well settled that hearsay evidence is inadmissible to show that the. accused is the person who committed the crime. Hence statements of the deceased made on the day before the homicide, to a third person in the absence of the prisoner, as to where deceased was then going, are irrelevant and should not be received. McBride v. Com., 95 Va. 818, 30 S. E. Rep. 454.

The court, in applying this rule in a criminal case, held that a witness who identified a certain piece of wearing apparel would not be allowed to repeat what he had heard, as confirming his statement. Hopper v. Com., 6 Gratt. 684.

5. BURDEN OP PROOF. — The burden of proving the identity of the accused rests upon the commonwealth, and the court should instruct the jury, if the accused so requests, that the identity of the accused with the perpetrator of the offense should be proved beyond a reasonable doubt. To refuse such instruction and to give in lieu thereof one which is calculated to create the impression upon the minds of the j ury that the identity of the accused with the perpetrator of the crime may be established by a lesser degree of proof is reversible error. Waller v. Com., 84 Va. 492, 5 S. E. Rep. 364.

Ill. IDENTITY OF PERSONS MAKING ADMISSIONS.

In George v. Pilcher, 28 Gratt. 299, the deposition of a witness, since deceased, was offered, whereby it was sought to show that one of the defendants, in the presence of the other, had, in an interview at Richmond, made to the witness certain admissions material to the issue. These defendants were strangers to the witness, and upon cross-examination describing them he said: “They were not black negroes. I think the brother-in-law had the lightest skin of the two. I think they were not bright mulattoes, but dark mulattoes.” It was proved by other witnesses that the brother-in-law spoken of was a white man, and that the other was so bright that he could hardly be distinguished from a white man. It was further proved that about the time when the witness said he had the interview with the two men they were both in the city inquiring for him. Upon an objection to the reading of the deposition on the ground that the witness did not sufficiently identify the persons whose admissions were sought to be proved by him, it was held that the evidence was prima facie sufficient to authorize the deposition to go to the jury.  