Conner v. Commonwealth , 2 Va. 30 ( 1815 )

This was a Writ of Error to a judgment rendered against the Plaintiff in Error, by the Superior Court of Law for Greenbrier county, on an Indictment for perjury. It is necessary to insert the Indictment at large, because it was decided to be defective in several material parts, and it cannot be understood without having the whole before us. It is as follows: ‘ ‘Virginia, Greenbrier county, to wit: The jurors for the Commonwealth of Virginia, and for the body of the county of Greenbrier, upon their oath present, that on the 22d November, 1813, a Regimental Court of Enquiry was duly and regularly held in the said county of Greenbrier, according to Law, and John Conner then and there personally coming before the said Court, then and there holden as aforesaid, and then and there in open Court was sworn, and did take his corporal oath upon the Holy '-Gospel of God, (the said Court having competent power and authority to administer an oath to the said John Conner in that behalf,) and the said John Conner not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, then and there, before the said Court upon his oath aforesaid, falsely and maliciously, wilfully and corruptly did say, depose, swear, and give evidence in substance, and to the effect following, that is to say : ‘I (himself the said John Conner meaning) was sick and unable to attend the last Regimental Muster, (meaning the Regimental Muster had of the Militia in the said county of Greenbrier,) on the 28th October, 1813,’ (the same being pertinent and material to the enquiry then and there making by the said Court relative to the non-attendance qf the said John Conner, at the said Muster,) whereas, in truth and in fact, the said John Conner was not then and there, that is to say, on the 28th October, 1813, sick,, and was not then and there unable to attend the said Regimental Muster, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Conner, on the said 22d November, in the year aforesaid, at the county of Green-brier aforesaid, and within the jurisdiction of the Superior Court of Law for said county, before the said Regimental Court of Enquiry, so as aforesaid, having sufficient power and authority to administer the said oath, to the said John Conner, falsely, wickedly, maliciously and corruptly, in manner and form aforesaid, did commit wilful and corrupt perjury, to the great displeasure of Almighty God, to the evil example of all others in the like case offending ; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the Commonwealth.” On the trial of this Indictment, the defendant was convicted, and the jury assessed his fine to twenty dollars. He moved in arrest of judgment, for the following reasons: 1. The oath in which the perjury is said to have been committed, is not set forth. 2. It is not averred in said Indictment, who administered the said oath, if any is set forth. 3. It is not stated, that the oath in which the perjury might have been committed was one of record, although the Law is express, that the proceedings before Courts Martial should be of record. 4. There is no legal averment that a Muster was holden on 28th October, 1813. S. That the said Indictment is uncertain, materially, as well as formally defective. 6. It does not appear that *Conner, the defendant, was bound to attend any Muster. The motion was over-ruled, the Court being of opinión, that the Indictment is a good one at Common Law. The defendant was thereupon adjudged to pay the fine and costs, and to suffer imprisonment in the jail of that county, for forty days, without bail or main-prize.

This judgment was rendered in September, 1814. At the June Term following of the General Court, the Plaintiff in Error applied for a Writ of Error, and the following reasons were assigned for reversing the judgment. 1. Because the Court in which the perjury is alleged to have been committed, is not sufficiently described, as it does not appear whether the' said Court was held under the authority of the State of Virginia, or the United States: Whether it was a Court composed of Militia Officers, or Officers of the Regular service; nor for what Regiment the said Court was formed, or constituted. 2. Because the matter in controversy is not set forth, or averred with sufficient certainty, it not appearing what was the cause, or matter in dispute, or who were parties thereto, nor whether the same were within the jurisdiction of the Court. 3. That it is not averred in the Indictment with sufficient certainty, that the matter sworn to was material, or pertinent to the question before the Court. 4. That it does not appear that the said Regimental Court of Enquiry had any jurisdiction in the matter before them. 5. Because it is not stated in the Indictment, nor does it appear that your petitioner was a Militia-man, or that he was bound to attend the Muster therein mentioned. 6. That it does not appear that your petitioner was properly examinable touching the matter mentioned in the said Indictment. 7. That all the matters necessary to be set forth in an Indictment for perjury, and directly averred, are only mentioned by way of recital.

On this petition a Writ of Error was awarded, returnable to the first day of this Term.

It may here be remarked, that the effect of the Writ of Error is to bring up to the Appellate Tribunal a certified copy of the record of the Court below, in order that the error therein, if any, may be corrected, and the judgment reversed. The Writ does not of itself operate as a Supersedeas to the judgment, by which means, whilst the Appellate Court is correcting the error, the judgment below may be carried into execution, however erroneous. To avoid this *evil, the General Court directs the Clerk, whenever a Writ of Error is granted, to endorse on the Writ .that it is to operate as a Supersedeas, whenever that may be proper. Thus, in the Case of Martin Isaacs, who had been convicted of a misdemeanor, and sentenced by the Superior Court of Cumberland to six months imprisonment, and to the pillory for an hour, on his obtaining a writ of Error, the following endorsement was directed to be made on the writ: “This Writ is to operate as a Supersedeas, provided the Plaintiff shall give bail according to Law before a Judge of the General Court, for his appearance at the next Superior Court of Law to be holden for the county of Cumberland, then and there to abide by the further order of said Court in relation to the prosecution on which the Defendant stands convicted, to reverse the proceedings whereof this Writ has been granted.” But, in this case, such direction was not given, because the judgment was completely executed, the Defendant having paid the fine, and suffered the forty days imprisonment, and so nothing to supersede.

On the return of the Writ of Error, the following judgment was rendered :

“It seems to the Court here, that the said judgment is erroneous in this, that it does not appear from the said Indictment, of what number of Officers the said Court of Enquiry consisted, or what was the respective rank of the said Officers, so as to enable the.said Superior Court to discern, whether the said Court of Enquiry was, or was not constituted according to Law : And in this, that it is not distinctly and directly set forth and averred, what was the enquiry, then and there making by the said Court, so as to enable the said Superior Court to know whether the matter deposed by the said defendant, was or was not material, or pertinent to the said enquiry. And this Court proceeding to give such judgment as the said Superior Court ought to have rendered, it is considered by the Court that the judgment aforesaid be reversed and annulled, and that the Defendant go thereof without day.”

On the motion of the defendant, leave was given him to shew cause, on the first day of the next Term, why a Writ of Restitution should be awarded in this case, of the fine and costs, &c. _