
    *Brookes Baker v. The Commonwealth.
    Criminal Law Prosecutor — Competency as Witness. —A prosecutor in an Information for assault and battery, who is liable for the costs, is a competent witness for tlie Commonwealth.
    Same — Refusal to Spread Evidence on Record — When Proper. — After a verdict for the Commonwealth and the application of the Defendant for a new trial overruled, the Court may rightly refuse to permit the evidence given on the trial to be spread on the record.
    Same — Writ of Error. — A Judge in vacation may not award a writ of Error in a Criminal case.
    This was an adjourned Case from the Superior Court of Prince Edward.
    
      
       Criminal Law — Prosecutor—Competency as Witness. —On an indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being the only witness for the prosecution, is a competent witness, though liable for costs in case tlie defendant is acquitted. Gilliam v. Com., 4 Leigh 688, citing Baker's Case, 2 Va. Cas. 353. See, in accord, citing the principal case, Com. v. Hart, 2 Rob. 822. See monographic note on “Assault and Battery ” appended to Roadcap v. Sipe, 6 Gratt. 313.
    
   WHITE, J.,

stated the Case, and delivered the opinion of the Court:

The petitioner, Brookes Baker, was presented by a Grand Jury, duly impanelled and sworn in a Court of Quarter Sessions of the county of Prince Edward, for an assault and battery, committed on a certain Nancy Davis. Upon this Presentment, an Information was duly and properly filed by order of that Court; an issue joined on the plea of “ not guilty,” and that issue, found for the Commonwealth.

On the trial of this Case, the Attorney prosecuting for the Commonwealth, produced the said Nancy Davis as a witness, to whose admission the Defendant’s Counsel objected, because the Presentment was found on her voluntary information, and she was answerable for the costs ; which objection was overruled, and an exception taken.

After the verdict was rendered, the Counsel for the said Defendant moved the Court for a new trial, which was refused ; whereupon, he moved the Court for leave to take down the evidence given on the trial, and spread it on the record; which motion was also overruled.

Under these circumstances, he applied in vacation to, and obtained from, a Judge of the General Court, a Writ of Error and Super-sedeas ; and afterwards, at the April Term, in the present year, the said Superior Court adjourned the following questions arising in the said cause, to this Court, for novelty and difficulty :

1. Is the prosecutrix a competent witness to prove the off en ce stated in the In formation ?

2. Ought the County Court, under the circumstances, and at the time stated, to have spread the evidence on the record ?

*3. May a Judge in vacation order a Writ of Error, as was done in this cause ?

Whereupon, this Court having maturely considered the premises, doth unanimously decide:

1. That the prosecutrix is a competent witness to prove the offence stated in the Information.

2. That the said County Court ought not, under the circumstances, and at the time stated, to have spread the evidence on the record.

3. That a Judge may not in vacation award a Writ of Error.

All of which is ordered to be certified to the said Superior Court!  