
    *Abner Vance v. The Commonwealth. Second Case.
    Criminal Law — Hurder—Indictment— Conclusions — Án Indictment for murder, need not conclude contra. formam statuti, although a punishment variant from the Common Law punishment, is prescribed by Statute for the second degree of the offence.
    Same — Same-Change of Venue. — The Act of Assembly which directs, that on a change of the venue in a Case of Felony, the Judge shall certify the recognizances. together with a copy of the record of the Case, “ and all other papers which he may deem necessary to the trial,” does not require that the Judge should certify a copy of the record of the Examining Court.
    Same — New Trial — Failure to Try after Third Term— Effect. — If a prisoner has been tried and convicted of a crime, and a new trial awarded to him, although he should not be again tried till after the third Term, (subsequent to his examination,) he is not entitled to a discharge.
    Same — Change of Venue — Plea to Jurisdiction — Effect. —The venue being changed from the county of R. to that of W. a plea that the murder was committed in R. and that therefore the Court of W. has no jurisdiction, is bad on demurrer.
    Same-Same-Challenge to Array. — Nor can the array of the j ury be challenged because they were summoned by the Sheriff of W.
    Same -Same — Necessity for Arraignment. — A prisoner having been arraigned, and pleaded in the county in which the offence was committed, need not be arraigned, nor required to plead, in the county to which the venue is changed.
    Same — New Trial — Prejudice—Case at Bar. — A new trial was asked for by a prisoner, because an account of the evidence given on a former trial, with a harsh expression towards him, was published in the county of his second trial, in a newspaper printed there, the Judgé of the Court having been the writer of that statement, but refused, the jury having all, on their voir dire, denied that they had formed and expressed an opinion, the fact of the Judge being the writer not being known till after the trial, he not having during the trial given an opinion to the jury, and no prejudice shewn to exist on the minds of the jury.
    
      
       Crimindl Law — Hurder—Indictment.—In Livingston v. Com., 14 Gratt. 596, it is said : “ The indictment is in the common-law form of an indictment for murder. In the demurrer to it, which was overruled by the Circuit court, the causes of demurrer are not stated. And as to those causes which have been assigned by the counsel for the prisoner, in the argument here, they seem to be fully answered by the cases of Miller v. The Commonwealth, 1 Va. Cas. 310; Vance 'o. The Commonwealth, 2 Va. Cas. 162; and Wicks v. The Commonwealth, 2 Va. Cas. 387.” See monographic note on “Indictments, Informations and Presentments ” appended to Boyle v. Com., 14 Gratt. 674. See principal case cited in Com. v. Adcock, 8 Gratt. 672, 678, 679, 681, 694.
    
   This was an application to a judgment against the petitioner in the Superior Court of Taw for Washington county. He had been indicted, tried, convicted, and sentenced to death by the Superior Court of Russell county, in April, 1818, for the murder of Tewis Horton. That judgment was reversed by the General Court, in June, 1818, and a new trial awarded.

At the September Term, 1818, of the same Court, the prisoner being brought up for trial, moved the Court for a continuance of the Cause till the next Term, upon an affidavit setting forth the materiality of certain witnesses, and their absence, subpoenas having been taken out to compel their attendance. The motion was over-ruled by the Court, for several reasons, which are set forth ; and in assigning those reasons, this remark was made by the Court: “ and the Court, considering the prisoner as a man of considerable sagacity and artifice, evinced by various circumstances which have occurred at this Term, is of opinion that the motion is made to gain time.”

*'The motion for a continuance being over-ruled, the prisoner was put upon his trial, and the venire summoned to try the Case being all called, and every person attending- the Court, qualified according to Taw, to serve as a juror in such a Case, as the Sheriff reported, and but part of the jury being elected, every other such person having been either challenged for cause by the prisoner, or by the Attorney for the Commonwealth, or peremptorily by the prisoner, a venire facias was awarded by the Court, directed to the Sheriff of Russell county, commanding him to cause to come before the Court on the then to-morrow, forty-eight persons, qualified as the Taw requires, for venire-men, returnable on the said next day. On that day, which was Thursday, the venire facias was returned executed, and all the persons attending the Court, as well as those brought by the venire facias, who were duly qualified, having been called, and a jury not being yet selected, another venire facias for forty-eight others was awarded, returnable on the next day. On that day, the venire facias having been returned, and it appearing to the Court, “that on that fifth day of the Term, at thirty-five minutes past two o’clock, only seven persons have been elected to serve as jurors, none of whom have been sworn, that the prisoner has still thirteen peremptory challenges yet to make, and that in execution of the process of yesterday, only seventeen persons have been found and summoned by the Sheriff, and the Counsel, as well for the prisoner, as the Commonwealth concurring in opinion with the Court, that a jury cannot be made up, and the Cause tried during this term, which will end from necessity at 12 o’clock to-morrow evening,” it was ordered that the trial be postponed till the next Term.

• Between those Terms the Act of Assembly passed, which authorises the Superior Courts of Taw, for certain causes, to change the venue in cases of treason or felony. See the Act 1 Rev. Code of 1819, ch. 169, § 9, p. 601.

On the first day of the Term, April, 1819, the Superior Court of Russell awarded a ve-nire facias for twelve qualified jurors, returnable on the next day. On the second day, the venire summoned by virtue of that writ, as also every other person attending the Court qualified according to Taw, (as reported by the Sheriff,) having been called, and but two jurors selected therefrom, upon the motion of the prisoner, by his Counsel, another venire facias was ^awarded, returnable on the next day, commanding the Sheriff to cause twenty-four freeholders, &c. to come, and the two selected jurors committed to the Sheriff’s custody, with the usual injunctions. On the third day, the twenty-four persons summoned by virtue of the last process, and every other person attending the Court, qualified according to Taw, (as reported by the Sheriff,) having been called, but one additional juror was elected therefrom. Whereupon, from the number of challenges for cause made by the prisoner in this Case, as well at the present term as at the last, it appears (says the record), to the satisfaction of the Court, that an impartial and legally qualified jury cannot be had for the trial of the prisoner in the county of Russell: it is therefore ordered, that the venue in this Case be changed to the Superior Court of Raw for the county of Washington, the most convenient Court in the 13th Circuit, where, in the opinion of this Court, the Commonwealth and the prisoner can have a fair and impartial trial.”

Accordingly, on the first day of the ensuing Term of the Superior Court of Washington, on the 31st May, 1819, the prisoner was set to the bar, and appearing in an emaciated state, his Counsel moved the Court that a physician be appointed to examine whether the state of the prisoner’s health be such as to enable him to undergo the fatigue of a trial: accordingly, three physicians were appointed, who reported, that the prisoner had some fever, but not so much as to injure him more in remaining at the bar, and undergoing the fatigues of his trial, than to be confined in jail. The prisoner thereupon craved oyer of the record of the Examining Court, and the trial postponed till the next day. On the second day of the court, the record of the Examining Court was produced, certified by the Deputy Clerk of Russell County Court. The Counsel for the prisoner thereupon moved the Court to discharge him, the proceedings of the Examining Court not being certified to this Court by the Judge of the Superior Court of Raw for the county of Russell, as the said Counsel alleged they ought to have been, in pursuance of the 9th section of the -Act of the last session, passed 26th February, 1819, which directs the said Judge to certify a copy of “all other papers which he may deem necessary to the trial,” but the said proceedings of the Examining Court are attested by the Deputy Clerk of the County Court of.Russell, who is not author-ised, as the Counsel alleges, to certify said proceedings in this '-Court; but the Court being of opinion, that the said Act of Assembly, required-only a certificate of the record and papers belonging to the Case, in the superior Court of Raw for Russell County, and it not appearing that the record of the Examining Court was there filed among the papers belonging to this Case, nor made part of the record, and the Court being further of opinion, that the record as certified, is proper evidence of the fact that an Examining Court had been holden, over-ruled the motion.

The Counsel for the prisoner then moved the Court to discharge him, because the Examining Court was holden on the 16th October, 1817, and three terms of the Superior Court of Russell have since been held, to wit: in April, 1818, in September, 1818, and April, 1819, and the prisoner has not yet had his trial. But the Court over-ruled the motion, because the prisoner had been tried at the April Term of the Superior Court of Raw for Russell, 1818, had been convicted, sentence pronounced on-him, but- execution had been prevented by a judgment of the general Court, reversing that judgment, and directing a new trial, and because every effort was made to bring him again to trial at the September Term of the Circuit Court of Russell, 1818, and at the April Term of the said Court, 1819, but no trial could be had at either of those Terms, for reasons which sufficiently appear by the record of this Case, from the said Circuit Court of Russell.

The prisoner then pleaded that the killing of Rewis Horton, by him, happened in the county of Russell, within the jurisdiction of the Superior Court of Russell, as in the said Indictment is alleged, and not within the jurisdiction of the Superior Court of Washington, &c. The Attorney for the Commonwealth demurred to the said plea; and the Court sustained the demurrer, and over-ruled the said plea to the jurisdiction.

The prisoner challenged the array of the jury returned to try him, alleging for cause of his challenge, that the act for which he is to be tried, was committed in the county of Russell; that the prisoner is an inhabitant of the county of Russell; that the jury returned have been summoned by the Sheriff of the county of Washington, by virtue of a venire facias issued by the Clerk of the Superior Court of Washington, and that the jurors are freeholders and inhabitants of the said county of Washington, and not of the vici-nage of the prisoner; wherefore he prayed that the said *array might be quashed. Which motion was overruled by the Court.

The prisoner was then put on his trial, and the trial running to such a length that it could not be concluded on the day of trial, the jurors were directed to be kept together by the deputy Sheriffs, they having been sworn and charged for that purpose, so that the jurors may have no communication but with each other. On the next day he was convicted of murder in the first degree.

On a subsequent day, the prisoner moved the Court for a new trial, on the following grounds : He proved that a newspaper was printed in the town of Abingdon, county of Washington, called the-“Political Prospect that there are about one hundred subscribers in the county aforesaid to said newspaper, and that it circulates more in that, than in any other county; that in that newspaper, printed 13th June, 1818, was inserted a publication, subscribed, “a citizen of Washington ;” of which the Judge of the 13th Circuit (then on the bench), was the author. The publication is then set forth in haec verba : the publication purports to give a statement of the evidence, given in the Superior Court of Russell, on the trial of two persons for murder, one of whom was the present prisoner, and both of whom had been convicted at the April Term preceding. In speaking of the act of the prisoner in shooting the deceased, the author uses the words “unfeeling savage,” as applied to the prisoner. [This is mentioned because it was much dwelt upon by the Counsel, in his petition for a Writ of Error.] He also shewed by the Record, that the Judge of;the 13th Circuit, in over-ruling a motion for a continuance at September Term, 1818, in Russell Superior Court, gave an opinion unfavourable to the prisoner, on a material question arising in his defence, in relation to his alleged insanity. This motion for a new trial was opposed by the Attorney for the Commonwealth, who reminded the Court that the jurors, (except those whom the prisoner declined swearing-on the voir dire,) were sworn, and having been asked if they had formed and delivered an opinion in the prisoner’s Case, severally answered in the negative : he also contended, that the publication should have been mentioned to the Superior Court of Taw for Russell county, when the venue was changed, and that it was now too late to change the venue to any other county. The Counsel for the prisoner alleged that the publication in question ^remained unknown to the prisoner and his Counsel, until after the jury were sworn in this Court. The Judge thereupon gave the following opinion : “The Court is of opinion that, although the official conduct of the Judge of the 13th Circuit is directly inculpated by the nature and character of this motion, and for that reason, a decision therein, by adjourning to the General Court the question which is involved, might be declined, yet that the principles of public justice require that the motion be now decided. The most dangerous consequences may be apprehended, should the progress of public justice be arrested whenever a prisoner, or his Counsel, should think proper to make an attempt for that purpose, by an application like the present, at any stage of the proceedings in a criminal trial. The feelings of the individual ought, therefore, to yield to the duties which the Court owes to the community. With respect to the principal question now to be determined, the Court is of opinion, that in the newspaper publication, and in the order refusing a continuance referred to by the prisoner’s Counsel, in the motion now made, no opinion on the prisoner’s case is declared; that even if such opinion had been given, but had been withheld from the jury who have passed on the prisoner at this Term, (as the fact is not denied to have been,) it would afford no good cause for a new trial.

“The Court is also of opinion, that as it has not appeared that any of the jury ever saw the before-mentioned newspaper publication, the author of which was never known until since the last trial of this Case, when a disclosure was obtained by evidence on the part of the prisoner, it could have produced no influence on the verdict. The jurors too, were sworn and examined for the purpose of ascertaining whether they were liable to be challenged for cause, or not, and all of them, except such as the prisoner elected without requiring them to be sworn, appeared not to have formed and expressed an opinion relative to this Case. The jury then must be considered as having acted and decided impartially. It has not been shewn, or even pretended, that any of them had previously formed any opinion, or in any manner prejudged the prisoner’s Case. No proof of any thing like unfairness in the trial, has been offered, unless it may be inferred from the fact specifically noticed by the prisoner in the terms of his motion. Itoughtnotto be forgotten, that the plea of insanity was abandoned by the prisoner’s Counsel in the defence, although *many witnesses were examined with a view to the support of that plea. There does not seem to be any power vested in this Court, by which the venue in this Case can now be again changed, from the county to which it has been lately transferred, to any other county, either within or without the limits of the 13th Circuit. The Act of the last session of Assembly affords all the authority which the Court can legally exercise in changing the venue in a Criminal Case, and this Court has already done all in relation to that subject, which the Legislature has empowered it to do. The motion for a new trial, and for changing the venue, is therefore over-ruled.”

The prisoner then moved to arrest the judgment, for the following causes :

1. Because the Indictment does not conclude against the Act of Assembly in that case made and provided.

2. Because the prisoner was not arraigned in this Court.

3. Because the prisoner was not put to plead in this Court, but was tried on a plea not filed, but entered ore tenus, in the Superior Court of the county of Russell.

4. Because this Court cannot give judgment for an offence committed and laid in the county of Russell.

The said errors in arrest of judgment, were over-ruled by the Court, and sentence of death was thereupon passed on him.

And now he applied to this Court for a Writ of Error, assigning as causes for reversing the judgment, all of the points which are made in the record, and which were decided against him. The application was rejected by the unanimous opinion of the Judges present, and the Writ of Error refused.  