Davis v. Davis , 112 Va. 904 ( 1911 )

By the Court:

This day came again the parties in obedience to the writ of habeas corpus awarded herein, and the court having maturely considered the petition of the plaintiff, the return and answer of the said defendant to said writ, and arguments of counsel, is of opinion that while it may be true as claimed by the petitioner and conceded in argument by the attorney-general and attorney for the Commonwealth for the city of Petersburg that all of the evidence which will be admissible upon a trial of the indictment found at the June term, 1911, of the Hustings Court of the city of Petersburg could have been introduced under some one of the indictments which were dismissed, that it may also be true that there are offenses charged in that indictment not embraced in the indictments which were dismissed, and the court is further of opinion that if there be one or more counts in the indictment of the June term aforesaid which state offenses not embraced in the dismissed indictments, though provable by evidence which would have been, as above indicated, admissible under those indictments which were dismissed, the prisoner cannot be discharged, but must be remanded for trial; and being further of opinion that it will be proper practice for the Hustings Court of the city of Petersburg, when the prisoner is set to the bar for trial, to require the attorney for the Commonwealth, before going into trial, to state upon what counts he relies as setting forth offenses not embraced in the indictments which have been heretofore dismissed, to the end that the court, with the aid of counsel, may determine upon which counts the accused may now properly be tried, and thus eliminate much that would tend to confuse the material issues and greatly protract the trial, it is, therefore, considered that the petitioner is not illegally detained in custody and his petition to be discharged is denied, and the prisoner is remanded to the custody of his surety on his bail bond to be tried on the charges pending against him in the Hustings Court of the city of Petersburg.

Petition denied.