Anderson v. Commonwealth , 5 Va. 740 ( 1835 )

Scott, J

delivered the resolution of the court. As long ago as 1823, this court decided, that a writ of error did not lie to the judgment of justices of a county court, sitting as a court of oyer and terminer upon the trial of a slave; Case of Peter, a slave, 2 Virg. Cas. 330. This decision, it is believed, accorded with the general understanding of the law prior to that time. No attempt has been made to shake its authority; nor has the legislature manifested any inclination to change the law in that particular.

By the statute of 1831-2, ch. 22. § 11. it is enacted, that “ free negroes and mulattoes shall hereafter be prosecuted, convicted and punished, for any felony by justices of oyer and terminer, in the same manner as slaves are now prosecuted, tried, convicted and punished: and any court summoned or adjourned for such trial, shall have and exercise all the powers and incidents of a court summoned and adjourned for the trial of a slave; except that in cases of homicide, and in cases where the punishment shall be death, the mode of trial shall be as heretofore.” By this provision, we think, the legislature has, in all that concerns the trial of free persons of color, for offences cognizable by the justices of oyer and terminer, placed them on the same footing with slaves. They are to be prosecuted l£ in the same manner as slaves are prosecutedthey are to be convicted ££ by justices of oyer and terminer in the same manner as slaves” are convicted: they are to be adjudged not guilty, if a single member of the court is of that opinion: but when found guilty by the unanimous consent of the whole court, the sentence is not subject to revision by any other court, but is final and conclusive. A court of oyer and terminer for the trial of a free negro or mulatto is, moreover, to “ have and exercise all the powers and incidents of a court summoned or adjourned for the trial of a slave. ” Every thing, then, that can be predicated of a court sitting on the trial of a slave, may be predicated of a court sitting on the trial of a free negro. In the case of a slave, the court has the power to pass final sentence; and one of the incidents to the judgment of such a court, is, that it is not subject to revision.

This court is of opinion, and doth decide, that a writ of error does not lie to the judgment of a county or corporation court sitting as a court of oyer and terminer for the trial of a free negro or mulatto. It is, therefore, unnecessary to decide the other questions adjourned. Which is ordered to be certified &c.