Boice v. State

1. A term of the circuit court does not necessarily begin on the day fixed bylaw, . but may open before four o’ clock in the afternoon of the third day thereafter; and therefore it is not error in a circuit court to enter judgment and order execution, against prisoners, who have been convicted for murder in one county, on the second day after the time fixed for the beginning of a term in an adjoining county of the same circuit 2. In the absence of proof to the contrary, it must be presumed that there was sufficient time after the entering of judgment, for the judge of a circuit to have reached the court-house of an adjoining county; by the ordinary course of travel, before four o’clock, p. m., of the third day after the period fixed by law for the term to commence. 3. If a party wishes to avail himself of matter rebutting such presumption, he must make it appear upon the record by bill of exceptions or otherwise.

Thb grand jury of Wood county, on the 17th day of October 1864, found a bill of indictment against Daniel Grogan, Thomas Boiee and Mortimer Gibbony alias Mortimer Gibney alias George Smith, for the murder of one Abraham Deem. There were eight counts in the indictment; the first charged that Grogan shot the deceased, and that Boiee and Gibbony were present, aiding and abetting; the second, that Boiee committed the murder, and that Grogan and Gibbony were present assisting and comforting; the third, that Gib-bony discharged the gun whereby the party was slain, and that the others were present comforting, aiding and maintaining; the fourth, that Boiee and Gibbony were principals in the assault, and tbat Boice shot the deceased, and Grogan was accessary; the fifth, that Boice and Gibbony were principals in the assault, and that Gibbony shot the deceased, and Gi'ogan was accessary; the sixth, that Grogan incited and counseled the others and was therefore accessary; the seventh, that the offense was committed by the parties jointly, and the eighth, that all of the parties committed the assault, and that Boice discharged the gun upon the deceased, and that the others were present aiding and abetting. The parties were tried at the same term, and on the 26th day of October, 1864, were found guilty of murder in the first degree. On the 2nd day of November following, they were brought into court, and on it being demanded what they had to say why the court should not proceed to pronounce judgment and execution against them, said that the court ought not so to do for errors upon the face of the record, and prayed that judgment might be arrested. The court overruled the motion in arrest of judgment and the defendants filed an assignment of error, alleging that the time fixed by law for the commencement of the term of court in Jackson county, in the same circuit, was on the 1st day of November, 1864, and that in point of law, that term having-commenced, the term of court in Wood county, should be then completed and ended, although there was time for the judge of the court after pronouncing the sentence to have reached the court-house of Jackson county by the ordinary course of travel, before four o’clock, P. M., of the third day of the term in Jackson county. The court proceeded to pass sentence of death by hanging, to be carried into execution on the 6th day of January, 1865. These were all the facts certified to on the record, but accompanying it were the affidavits of one A. W. Moss, deputy clerk, and W. Hatcher, the clerk of the court in Wood county. The former affirmed that he was deputy clerk of Wood county at the time of the trial at the October term, that the court adjourned on the evening of the 2nd day of November, when the minutes were read and signed; that on the Saturday week following, he was asssisting the clerk to malic out a record in the eases for the prisoners, when a controversy arose as to whether the word, in the assignment of errors was the “third” or “fourth” day of the-term in Jackson county, when the clerk informed him that the judge had written “third” through the word “fourth” after the adjournment of court; and that the clerk then requested the affiant to carry the assignment of errors to the judge, who erased the word entirely and wrote “third” above it. The clerk affirmed that at the time of the sentence of death upon the prisoners, they, by their attorney, said that they would file errors in arrest of judgment, but not being then written out or presented in court, it was agreed that the record should show that they were filed; that James M. Jackson, one of their attorneys stated that he would show the assignment of errors to judge Edmiston, (one of the prosecuting attorneys for the State,) on the next morning. On that day, (being the day after court adjourned,) J. if, Jackson brought to him, in the clerk’s office, the assignment of errors, and requested a transcript of the record, at as early a date as possible. That in making up the record he found at the foot of the assignment of errors after the word •ended, in the hand writing of the judge who sat during the trial, the addition of the following words, “although there was time for the judge of this court, after the pronouncing of said sentence, to have reached the court-house of Jackson county, by the ordinary course of travel, before four o’clock, P. M., of the fourth day of the term in Jackson county,” That he took the assignment of errors to the judge and asked him if the word “fourth” was not error, whereupon the judge wrote the word “third” over or upon the word “fourth,” remarking that he was led into the error by G-rattan’s reports in the syllabus in Hill’s case, but that the correction was according to the facts in the case. The defendants applied to this court for a writ of error, which was allowed. The petition alleged that there was error in overruling the motion to quash the indictment and each count thereof, because in the counts charging some of the parties as accessaries, no one was charged as principal, and tbat tbe court erred in overruling tbe motion in arrest of judgment on tbe grounds set forth in tbe assignment of errors. Tbe court will take judicial notice of tbe beginning and ending of tbe terms of tbe circuit courts of tbis State. Tbe terms of tbe court in Jackson begins on tbe 1st day of March, May, September and November. Tbe terms of tbe court in Wood, on 15tk day of April, June, October and December. By law a court may adjourn from day to day, or until tbe end of tbe term. Code, 684, section 8. A court may also open a'term on a subsequent day to that fixed by law, provided tbat it be not later than four o’clock in tbe afternoon of tbe third day from tbat period. Code 686, section 14. In tbis case tbe court bad not time to get to tbe court-house of Jackson county by four o’clock, P. M., of tbe third day of November, and hence tbe term in Wood county bad expired by law. 6 Rand., 717; 2 Grat., 611. The record states tbat tbe judge certified tbat be could reach tbe court-house of Jackson county by four o’clock of tbe fourth day. Tbe sentence, therefore was done coram non judice. There is no evidence tbat tbe court could have reached Jackson court-house by four o’clock of tbe 3rd day of November, and tbe fact only appears on tbe assignment of errors presented by tbe defendants’ attorneys, when it was interpolated by tbe court long after tbe adjournment of tbe Wood county session. Tbe law found in sections 5 and 6 of Code, page 743, relating to corrections of tbe record in vacation, cannot be applied to criminal cases; and no record in a criminal case can be amended by tbe judge at chambers, as tbe prisoner is not before him. 2 Va. Cases, 545; 4 Rand., 161; 4 Leigh, 308; 5 Grat., 147; 11 Grat. 882-33; 7 Leigh, 640; 12 Grat-, 534-5. Tbe record presented is tbe only basis of action for tbis court. Tbe record shows no grounds of error; tbe court, according to it, adjourned on the 2nd. day of November, 1864, and the assignment of error by the attorney for the defendants, was filed, as it appears by an affidavit of the clerk of the court of Wood, the morning of the 3rd of November, and after the court had adjourned. If it was competent to enter the assignment of errors on the day after the term closed, it was equally so to change the record ten days after, byfinterpolating “third” instead of “fourth” day of the term. In Mendum’s case, 6 Rand., 717, it does not appear at all that the court could not have reached the succeeding term by four o’clock of the third day. There is nothing in this case showing that the judge could not have reached the court-house of Jackson county by four o’clock on the 3rd day of November, 1864. Nothing appearing upon the record of the change in it, except the affidavit of the clerk, it is not competent to call testimony to the bar of this court to show to the contrary.