1. Principal and surety.-Creditor loses no right as against surety, by
failing to press collection from principal, unless under Code 1873, ch.
144, 4 and 5, surety shall notify creditor to proceed against princi-
pal, and he fails to heed the notice. Updike's Adm'r and als. v.
Lane, 132.
2. Surety-Laches-Heirs-Distributees.-Surety on bond can never
charge creditor with laches, until he has in vain prompted the cred-
itor to pursue the principal. It is the surety's business to watch his
principal. Creditor need not move till notified. Same is true of
surety's heirs and distributees. Cole's Adm'r v. Ballard and als.,
3. Creditor's suit—Aliened lands.—Judgment creditor brings suit to en-
force his lien. After account ordered and taken and other liens
proved, the other lienors become parties to the suit, and are entitled
to have the lands sold for their relief in the order of their respective
priorities, and aliened lands of the debtor must be sold in the inverse
order of the alienation. P. & A. Ins. Co. v. Maury, 1 Matthews (75
Va.), 508; Code 1873, ch. 182, 10; Brengle and als. v. Richardson's
Adm'r and als., 406.
4. Fraudulent Conveyance-Creditors-Existing-Subsequent-Case at
bar. Hatcher and als. v. Crews and als., 460.
5. Corporations—Directors-Assets.—Directors are bound to discharge
their duties prudently, diligently, and faithfully, and apply the assets,
in case of insolvency, for the benefit of creditors in preference to
stockholders and other persons. Planters Bank of Farmville v.
Whittle and als., 737.
6. Idem-Idem-Not trustees.-But they are not technically trustees nor
bound to apply the assets ratably among the general creditors.
Idem.
7. Idem―Idem—Preferences-Bona fides.-They may not only make
preferences between creditors, but such preferences may be made in
their own favor if they be creditors. But in such cases they must act
with the utmost good faith. Idem.
8. Idem-Idem-Assignments in payment of debts-Liens.-Code 1873, ch.
57, 63, providing that liens or encumbrances giving preferences to
creditors, except to secure debts contracted or money borrowed at
the time of creating the lien or encumbrance, shall enure to the ben-
efit ratably of all' the creditors of the company existing at the time,
does not prohibit the assignment of assets at their face value in dis-
charge of the company's indebtedness, no lien being thereby created.
Idem.
CRIMINAL JURISDICTION AND PROCEEDINGS.
I. E was convicted in corporation court of D, of felony, in March, 1883,
and sentenced to confinement in the penitentiary. In July, 1883, he
CRIMINAL JURISDICTION AND PROCEEDINGS (continued).
was arraigned in the circuit court of Richmond, upon an information
alleging that he had been before convicted and sentenced for a like
offence, to-wit: in March, 1881. He pleaded a full pardon from the
governor for the first offence, granted in April, 1882. A demurrer to
this plea was sustained, and he was sentenced to a further term of
five years in the penitentiary, under Code 1873, ch. 195, % 25. On
1. The governor's pardon having, in a legal sense, blotted out the
first offence, it must be regarded as though it had never been
committed.
2. The demurrer to the plea should have been overruled. Edwards'
2. Venue. Upon application for change of venue on ground that an im-
partial jury cannot be had in that county, or brought thereto from
another county or corporation, application is refused, and a jury ob-
tained in the county.
Prisoner should first have asked for jury from another county. Not
having done so, and an impartial jury having in fact been ob-
tained, the conclusive presumption is that the application for
change of venue was unfounded. Joyce's Case.
3. Continuance-Arraignment-Prejudice against accused.-Prisoner may
move for continuance before arraignment, but affidavits of preva-
lence of bitter and general prejudice against him, do not of them-
selves constitute good ground for continuance. Idem.
4. Evidence-Res gesta.-Facts which constitute the res gesta must be
such as are so near connected with the very transaction or fact under
investigation as to form a part of it. Haynes' Case, 28 Gratt. 942.
Idem.
5. Idem-Idem-Case at bar.-Shortly before prisoner shot deceased,
prisoner had a quarrel with R at W's bar room; but this quarrel was
in no manner connected with the shooting of deceased, who was not
present, or in any way alluded to or concerned in it. The two trans-
actions were wholly distinct. At the trial Commonwealth offered,
and against prisoner's objection the court admitted, testimony relat-
ing to the quarrel with R.
1. Such testimony was not part of the res gesta, and was inadmis-
sible.
2. It was irrelevant, and calculated to excite and mislead the jury,
and so prejudice prisoner.
3. If he may have been so prejudiced, though it be doubtful whether
in fact he was so, or not, that is sufficient ground for reversing
the judgment. Payne's Case, 31 Gratt. 858. Idem.
CRIMINAL JURISDICTION AND PROCEEDINGS (continued.)
6. Appellate court.-Objections to the introduction of evidence cannot
be taken in the appellate court for the first time. Russell's Case,
400.
7. New trial.-When some evidence has been given which tends to prove
the fact in issue, or when the evidence consists of circumstances or
presumptions, a new trial will not be granted merely because the
court, if upon the jury, would have given a different verdict. To
warrant a new trial in such cases, the evidence should be plainly in-
sufficient to justify the finding of the jury. And this rule a fortiori
applies to an appellate court. Dean's Case, 32 Gratt. 912. Idem.
8. Executioner.—Under the statute the judgment in a criminal case will
not be set aside because it fails to appoint an executioner of the sen
tence. Acts 1877-8, page 347, 9. Idem.
9. Circumstantial evidence-Case at bar.-The evidence which is circum-
stantial only, justifies the verdict of murder in the first degree.
Idem.
10. Sample merchants-Unlawful intent-Case at bar.-At the trial of W,
the agent of a duly authorized sample merchant, for selling goods
not the property of his principal, the defendant asked the court to
instruct the jury that even if they believed the principal had violated
the law, yet they must acquit the defendant unless they also believed
that he had participated in the violation with an unlawful intent.
The intent of the defendant is not by the statute an ingredient of the
offence, and need not be alleged or proved. Hence the instruc-
tion was properly refused. White's Case, 484.
11. Unlawful gaming-Self crimination-Personal disgrace.-K was
sworn and sent to the grand jury to testify as to charge against L of
unlawful gaming, and refused to answer questions propounded by
grand jury, because the answer would tend to criminate and disgrace
himself.
Acts 1877-78, ch. 10, sections 20 and 22, page 51, New Criminal Pro-
cedure, secures full protection to witnesses testifying in prosecu-
tions for unlawful gaming, and K is not justified in refusing to
testify on the ground that his answer will tend to criminate and
disgrace him. Kendrick's Case, 490.
12. Prisoner dischargeable—Case at bar.-H was examined before a jus-
tice for felony May 9th, 1883, and remanded for trial in hustings court
of D. That court held terms May 10th and June 4th, 1883, at both
which grand juries were empaneled. But H was indicted for said
felony not until October, 1883. Failure to indict did not arise from
any of the causes stated in 13, ch. 16, Criminal Procedure of 1878.
To the indictment, H filed a special plea in bar, which was rejected.
On error-
CRIMINAL JURISDICTION AND PROCEEDINGS (continued).
HELD:
The plea is good, and H is entitled to be discharged from imprison-
ment. Hall's Case, 678.
13. Felonious intent-Case at bar.-H, in a drunken spree, unhitched
and mounted a horse in the presence of its owner and of the ware-
house man, and of a number of factory hands, in the daytime, in the
warehouse yard, where the horse was hitched, claimed the horse as
his own, and attempted to ride it out of the lot homeward. He was
arrested, remanded to jail, indicted, tried, and found guilty of the
larceny of the horse. He moved for a new trial, which was denied.
On error-
The facts do not evince felonious intent, and warrant the verdict.
Idem.
14. Indictment-Time laid-Perjury.—As a general rule, time of com-
mission of offence, as laid in indictment, is not material, and con-
fines not proof to time laid; but where time laid is provable by re-
cord, and in indictment for perjury, time must be truly and precisely
laid, and failure so to state it renders indictment demurrable. Code
1873, ch. 201, % 5. Rhodes' Case, 692.
15. Indictment for perjury.—Where one is indicted for swearing contra-
dictorily on two occasions, prosecutor must elect which oath he
holds to be perjured, and that oath he must affirmatively prove to
be false. If defendant is shown to have sworn contradictory oaths
without more non constat which is false. Idem.
16. Idem―Materiality.—The matter of the false oath must be material.
If it be not material, the fact that it is false will not sustain the con-
viction. Idem.
17. Idem-Idem-Case at bar.-R swore that M had stolen bacon and
offered to sell it to him November 15th, 1875. Later, R swore that
M had stolen bacon and offered to sell it to him just before Christ-
mas, December, 1875. On indictment against R for perjury, it was
not proved that M did not steal bacon; but it was proved that R
made contradictory statements as to the date. R was convicted.
On error-
1. The stealing of the bacon was the material matter of the charge.
2. The date of the offer to sell was not material to the offence.
3. The oath as to the date was not material to the issue, and was not
likely to induce the jury to give the readier credit to the sub-
stantial part of the evidence.
18. Murder Malice.-Malice is presumed from the fact of killing unac
CRIMINAL JURISDICTION AND PROCEEDINGS (continued).
companied with circumstances of extenuation; and the burden of
disproving malice is upon the accused. Lewis' Case, 732.
19. Idem-Intent.-Every man is presumed to intend the natural and
probable consequences of his own acts. Idem.
20. Idem―Justification.-The necessity relied on to justify the killing
must not arise out of the prisoner's own misconduct. Idem.
21. Idem-Evidence of threats.-Threats by deceased to prisoner, di-
rectly or through others, are admissible to determine whether the
accused had, at the time of the killing, reasonable ground to appre-
hend serious bodily harm. Idem.
22. Instructions.-Case at bar affords instance of instructions to jury af-
ter retirement to consider verdict. Idem.
23. Indictment-Statutory offence.-In describing an offence under a sta-
tute, the indictment must follow the statute, and any material vari-
ance will be fatal. Bailey's Case, 19.
24. Construction of statutes-Obstructing roads, &c.-Averment of sci-
enter.-In Criminal Procedure, ch. 26, 1, an essential of the offence
therein described is the scienter. Failure of indictment to aver the
scienter is fatal. Idem.
25. Idem-Public road-Contempt of court.-Under that section a “road,”
which has merely been ordered to be opened, but has never been ac-
tually opened, is not a road, such as that section prescribes a penalty
for obstructing. Resisting the execution of the court's order to open
such "road," is not an offence under that section, but is a contempt
of the court. Idem.
26. Idem-Evidence-Onus probandi.—Where one is indicted under said
section, the onus of proving that the road alleged to have been ob-
structed was, at the time of the offence, a regularly established and
open road, rests on the Commonwealth. Idem.
27. Plea of guilty-Evidence in mitigation—Hearsay.-Although part of
testimony introduced by prisoner in mitigation of sentence, after
pleading guilty, may be hearsay, yet the refusal of the court on his
motion to instruct the jury that said testimony is not to be regarded
by them in considering the case, is no ground for reversing the judg-
ment under the circumstances. Granger's Case, 212.
1. Appellate jurisdiction—Decree against distributees.-Where for debt
of decedent there is no decree in solido against his personal repre-
sentative, but severally against each distributee for his proportion of
the debt which exceeds $500, substantially it is a decree against the
decedent's estate, and as it exceeds in the aggregate the minimum
jurisdictional sum, an appeal lies from the decree in behalf of the
distributees. Updike's Adm'r and als. v. Lane, 132.
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