White v. Commonwealth , 1884 Va. LEXIS 120 ( 1884 )

Richardson, J.,

after stating the case, delivered the opinion of the court:

In the view of the case taken by this court, it will only be necessary to consider the question raised by the defendant’s first hill of exceptions, which sets forth, that on the calling of the case at the term of the court at which the trial was had, the defendant, by his counsel, moved for a continuance until the next term (March), upon the ground that there was already pending on the docket of the supreme court of appeals another case involving precisely the same questions against the same defendant, and involving the construction of the statute under which he is prosecuted in this case, and insisted that the present case should await the determination of that case, which was then on the commonwealth’s docket of the said supreme court of appeals, and would he disposed of in a short time thereafter. See White v. The Commonwealth, 78 Va. 484. And the said bill of exceptions further sets forth that it appearing that the offence charged in this case was committed by the defendant two or three days after his trial and conviction in the said case pending in said supreme court of appeals, the said motion for a continuance was overruled hy the court, and the defendant compelled to submit to a trial.

The sole question is, did the said hustings court err in overruling the motion for a continuance and forcing the defendant to trial under the circumstances? This question must he answered affirmatively. All the facts upon which the motion for continuance was founded, were fully and clearly brought to the attention of the trial court. In fact, they were all substantially within the knowledge of the court, independent of the motion. The record of the previous indictment, trial and conviction was there, together with the judgment of the court thereon, and the order suspending the execution of said judgment. The fact is conceded, in the bill of exceptions, that the plaintiff in error is the same person who had been previously convicted in the same court for the violation of the same statute alleged in this case to have been violated; and the indictment in this case charges that the defendant, Charles H. White, had been previously convicted of the same offence therein charged. The defendant being thus indicted for the second offence under said statute, for which a different and heavier penalty attaches than to the first offence, it is manifest that, pending the first case on writ of error in the court of last resort, justice, as well to the commonwealth as to the accused, demanded that the prosecution in this case should have waited the determination of this court on the writ of error in respect to said first conviction. It is undoubtedly true, as charged in the indictment, that there had been a previous conviction and sentence. Mr. Bouvier defines conviction as that legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded. 1 Bouv. L. D. 362. In 1 Bishop’s Criminal Law, conviction is said to he, “ finding a person guilty by verdict of a jury.” Mr. Bouvier again says: “The first of the definitions here given (above) undoubtedly represents the accurate meaning of the term, and includes an ascertainment of the guilt of the party by an authorized magistrate in a summary way, or by confession of the party himself, as well as by verdict of a jury. The word is also used in each of the other senses given. It is said to be sometimes used to denote final judgment.” Citing Dwarris’ Stat., 2d ed. 683.

Probably, in a prosecution alleging, as in this case, a former conviction, and where the statute imposes an increased penalty for each succeeding offence, and when the alleged prior conviction and judgment thereon is held for review on writ of error in the court of last resort, it would be safer and more in consonance with a liberal and just view of the rights of the citizen to hold, as intimated by Dwarris, that pending the alleged former conviction in the appellate tribunal there is wanting that final judicial sentence essential to constitute conviction. In such case it is apparent that if the judgment of the appellate court should be one of reversal nothing would be left as the basis of a second prosecution alleging a former conviction.

But however this may be, and while it is unquestionably true that in this case, as alleged in the indictment, there was a prior conviction, yet, it is equally true that, by the writ of error and supersedeas awarded by this court, the correctness of that prior conviction had been brought in question,'—was wanting in that degree of conclusiveness without which it was impossible to take safely any step either to dismiss or proceed with this prosecution alleging a prior conviction. This being in the nature of things so, justice to both the commonwealth and the accused required that the case should he continued to await the judgment of this court in respect to said alleged former conviction.

As before stated it is unnecessary to consider the questions raised by the two remaining bills of exception. For the reasons above we are of opinion that the court below plainly erred in overruling said motion for a continuance and forcing the defendant into trial, and that the judgment of the said hustings court must he reversed and annulled, the said verdict of the jury set aside and the case remanded to said hustings court for a new trial to be had therein in accordance with the views herein expressed.

Judgment reversed.