Jones v. Grimmet , 4 W. Va. 104 ( 1870 )

Berkshire, J.

All the questions in this case, except the last error assigned, were disposed of in the case of Caperton v. Martin, which was decided at the present term.

We need, therefore, only consider the last error assigned. It consists, as it is claimed, in rendering the judgment on the verdict found by the jury.

The only objection to the verdict is the failure to find on the issue joined, as to Fisher, one of the defendants, as to' whom the verdict is silent.

But Fisher has not appealed, and it is not perceived how the omission of the jury as to him could injure the plaintiffs in error.

In the case of Burnett vs. The Commonwealth, 2 Va. Cas. 235, it was held, that on the trial of an indictment containing several counts, and the jury find the prisoner guilty on one of them, saying nothing about the others, the court should enter a judgment of conviction on the verdict, on the count on which the defendant was found guilty, and a judgment of acquittal on the others. Without deciding, however, whether the court should have dismissed or entered a judgment of acquittal as to Fisher, I think, as the other defendants were not prejudiced by the omission as to Fisher, it was proper to enter the judgment, on the verdict, against the defendants who were found guilty.

The judgment, therefore, must be affirmed with costs and damages.

Brown, Prest., concurred with Berkshire, J.

Maxwell, J.

Let the judgment be affirmed, with damages and costs to the defendant in error.

Judgment affirmed.