Commonwealth v. Sullivan

1 Howison 13

• Court: Henrico County Circuit Court
• Decided: November 2, 1850
• Status: Published

Opinion

The evidence closed.

The case was argued earnestly and at considerable length. On the part of the defence, the points chiefly pressed were,

I.That there was no proof that these articles ever were stolen.

II. That if stolen, there was no proof they ever were received by the prisoner himself.

III. That if received by him, there was no proof that he knew them to have been stolen.

The Jury went out at about 5 o’clock, and returned at a quarter before 6, with the following verdict:

“ We, the Jury, find the prisoner guilty, and assess his term of imprisonment at fifteen months.”

The Court said the verdict might be amended if it was not in proper form, and if the Jury desired to amend it. And the Jury so desiring, the verdict was amended so as to fix the term of confinement in the penitentiary at fifteen months.

The prisoner’s counsel excepted to the decision of the Court, permitting this amendment.

When the verdict was rendered, the wife of the prisoner sunk back as though in a swoon, and some time passed before she could be recovered by the use of restoratives. When she was in some measure restored, she uttered deep groans and cries of distress.

Wednesday, November 6, 1850. —A motion for a new trial was made by the prisoner’s counsel, founded on an affidavit of Johnson Sullivan, a brother of the prisoner. The affidavit in writing was presented, but the Court requested that the affiant should personally appear and be sworn.

Johnson Sullivan then testified that Catharine Coully was a servant at the City Hotel, and left about two months ago—that the witness has learned facts from her—that Catharine Coully had said to him that she sold these articles to Mrs. Sullivan, but the witness did not know that Catharine Coully had purchased, or said she had purchased these articles for valuable consideration.

The Court.

Mr. Sullivan, are you aware that you have solemnly sworn in this affidavit, that Catharine Coully said to you that she had purchased these articles for valuable consideration ?

Witness.—Oh, no 1 she never said that to me.

Here Mr. Carrington said, that justice to the witness required that he should state that the affidavit had been prepared upon the facts which the witness was believed to know, but that when read to him, the witness objected to that part of the affidavit, and required it to be stricken out, and that it was intended that it should be stricken out, but through inadvertence it was not done.

The Court.—I have often thought, and feel it ray duty now to say, that greater care ought to be used by Counsel, in the pre* paration and presentation of affidavits like this. In future I may feel bound, to admit no such state of facts as an excuse, and to direct a prosecution to proceed against a party who shall thus make conflicting statements under oath. Upon the facts as proved in Court by the affiant, I see no ground for a new trial, and accordingly overrule the motion.

Sentence was pronounced upon the prisoner in accordance with the verdict of the Jury.