Commonwealth v. Leath , 1 Va. Cas. 151 ( 1805 )

The prisoners were indicted, convicted, and sentenced each to two years imprisonment in the jail and penitentiary, for the offence of malicious stabbing of A. B. on the 19th of February, 1805, by the District Court of Petersburg, at the April term, 1805. At the same term, two other indictments were found against the same prisoners, the one for the felonious and malicious stabbing of Turner Fear, and the other for the 152 ^felonious and malicious stabbing of John Williams, both on the aforesaid 19th February, 1805. Another indictment was also found against the prisoner Heart-well Death alone, for the malicious stabbing of Daniel Dyon on the said day, and two other indictments were also found against the prisoner Peter Death alone, for the same crime committed against two other persons on the same day. The prisoners were convicted by the jury on each of the indictments, and the term of their imprisonment ascertained in each case. When they were brought to the bar to receive their sentence, they moved to arrest the judgment for the following reasons. 1st. Because the defendants Heartwell Death and Peter Death have already been found guilty of stabbing, and have been sentenced to undergo a confinement in the penitentiary house, and because no law of the land allows a man convicted, to be sentenced to undergo punishment at a far distant day, after he shall have undergone punishment in the mean time, for an offence of the like, or of a different kind. 2d. Because the act of assembly passed in the year 1803, forbids a prisoner to be tried in the district court until he shall have been examined in a county or corporation court, and in this instance the said Heartwell and Peter Death were examined in the court below for a single offence only, as by the record of their trial and examination will appear, which record is in the words following : “At a called court held for 153 the town of Petersburg *at the courthouse on the said Tuesday, the 25th February, 1805, for the examination of Peter Death and Heartwell Death on suspicion of felony, present Paul Nash, mayor (also the recorder and four alderman by name). The said Peter Death and Heartwell Death being brought to the bar in custody of the serjeant of this town, to whose charge for the aforesaid cause they had been committed, and upon examination, divers witnesses being sworn and examined on the premises, and the prisoners not having any thing to say in their owh defence, on consideration it is the unanimous opinion’of the court that the said Peter Death and Heartwell Death should be tried for the said supposed offence at the next District Court to be held in Petersburg the 15th April next, and thereupon they are remanded to jail.” Whereas they have been tried in the district court for several offences—the offence on which testimony was given in the court below, having been parcelled out and divided into several and distinct offences. 3d. Because in the third indictment the venire summoned were not called so as to enable the prisoners to elect such of the said venire as they might think proper. The attorney for the commonwealth replied to this motion and alleged : 1st. That the prisoners had been tried and convicted for separate and distinct felonies, and that for each of the said felonies, each of them was liable by the law of 154 the land to distinct punishments. *2d. That the record of the hustings court, shewed that the prisoners were duly examined for all and every one of the felonies for which they have been tried here. 3d. That the jury who tried the prisoners were in fact elected by them, after having largely exercised their right of challenge.

The district court being in doubt whether judgments shall be entered against the said prisoners for the several felonies aforesaid for which they stand convicted, adjourned the question to the general court for their decision.—That court, consisting of judges White, Carrington, Stuart, Brooke and Holmes, on the 18th November, 1805, gave the following opinion. “The court having maturely considered the transcript of the record in this case, is of opinion that the said Heart-well and Peter Death may be adjudged to undergo a confinement in the jail and penitentiary house of this commonwealth, upon the five convictions last in the record in the said case mentioned, although they have already been adjudged to undergo such imprisonment upon the first conviction therein mentioned, agreeably to the former opinion of this court pronounced at June term 1800, in the case of the Commonwealth against Taylor ; and each imprisonment ought to commence from and after the expiration of the imprisonment or imprisonments which may have been adjudged against them before the 155 **rendition of such judgments respectively.—It is also the opinion of the court here, that the said Heartwell and Peter Leath have been duly examined in the corporation court of Petersburg for the several offences charged in the several indictments in the record in this case mentioned.—And the court is further of opinion, that if the said Heartwell and Peter Leath shall make it appear to the said district court that they have by any illegal means whatever been deprived of their right to elect at their trial the persons or either of them returned by the sheriff on the venire facias to him directed, that the said court ought in such case to set aside the verdict rendered in consequence of such deprivation, and to award a new trial.”