Opinion
02-02-1816
Buster v. Ruffner. [*]
OPINION
The appellee brought an action of assumpsit against the appellant in the Supreme Court of Kanawha county. The declaration began with the words, " Virginia, Mason county, to wit, Joseph Ruffner complains of Claudius Buster, in custody, & c. for that whereas the said Claudius, to wit, on the 1st day of January 1812, at the county aforesaid, was indebted to the said Joseph, & c." ; in the usual form; containing three counts, viz. one, in general terms, for money had and received by the defendant, to and for the use of the plaintiff; another, more specially, for money had and received, in like manner, for the sale of a negro man slave, the property of the plaintiff; and another upon a quantum valebat for the price of a negro man slave sold and delivered by the plaintiff to the defendant. On the plea of non assumpsit, a general verdict was found for the plaintiff, entire damages being assessed: whereupon, the defendant filed errors in arrest of judgment; to wit, " that the declaration is filed as in the county of Mason, and there is no jurisdiction given to this court in said declaration; that there are two counts, and a verdict returned for three hundred dollars, without designating on which of the counts the jury found." The Superior Court entered judgment for the plaintiff according to the verdict; which judgment was affirmed by the Court of Appeals, on the 2d of February, 1816.
VENUE.
I. Laying the Venue.
A. In Civil Actions.
B. In Criminal Cases.
II. Change of Venue.
A. In Civil Actions.
B. In Criminal Cases.
Cross References to Monographic Notes.
Abatement, Pleas in, appended to Warren v. Saunders, 27 Gratt. 259.
Common Carriers, appended to Farish v. Reigle, 11 Gratt. 697.
Corporations (Private), appended to Slaughter v. Com., 13 Gratt. 767.
Courts, appended to Cropper v. Com.Rob. 842.
Executors and Administrators, appended to Rosser v. Depriest, 5 Gratt. 6.
Forgery and Counterfeiting, appended to Coleman v. Com., 25 Gratt. 865.
Gaming, appended to Neal v. Com., 22 Gratt. 917.
Homicide, appended to Souther v. Com., 7 Gratt. 673.
Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
Injunctions, appended to Claytor v. Anthony, 15 Gratt. 518.
Insurance, Fire and Marine, appended to Mutual, etc., Soc. v. Holt, 29 Gratt. 612.
Insurance, Life and Accident, appended to McLean v. Piedmont, etc., Co., 29 Gratt. 361.
Intoxicating Liquors, appended to Thon v. Com., 31 Gratt. 887.
Juries, appended to Chahoon v. Com., 20 Gratt. 733.
Jurisdiction, appended to Phippens v. Durham, 8 Gratt. 457.
Penitentiary, appended to Brooks v. Com.Rob. 845.
Removal of Causes, appended to Brown v. Crippin, 4 Hen. & M. 173.
Reference is also made to 4 Min. Inst. (3d Ed.), pt. 1, p. 608, 711, 810, pt. 2, p. 1168-1174, and Min. Crim. Law, p. 264.
I. LAYING THE VENUE.
A. IN CIVIL ACTIONS.
General Statement.--" We hold it to be a clear principle, that actions may be brought here (in Virginia) upon contracts entered into, or personal injuries committed, anywhere. In general, it is not necessary to state in the declaration, where the contract arose, or the injury was committed. But this is sometimes necessary, and then (for the sake of obviating the objection of a variance, or the like), the plaintiff is permitted, by a fiction, to state, under a videlicet, that the place is within the jurisdiction of the court in which the suit is brought. It is also held that this fiction, being in furtherance of justice, cannot be traversed. In cases in which the plaintiff does not use this fiction, the defendant shall not, in general, be permitted to aver that the cause of action arose in another country; for that averment is in conflict with the principle before stated, that contracts and personal injuries are not in their nature local. A defendant shall not be permitted to aver this fact, unless he finds it necessary to aver, also, that, by the laws of the country in which the act was committed, it was justifiable. In that case the locality of the act forms an essential part of his defense; it cuts up the right of action of the plaintiff, and the pleading it is even beneficial to the plaintiff, as it affords him an opportunity, before the trial, of ascertaining whether the laws of the country in question are such as are averred by the plea." Shaver v. White, 6 Munf. 110.
In Actions for Personal Injuries.--Actions for personal injuries are transitory and it is unnecessary to set forth in the declaration the place at which the act was done which caused the injury. N. & W. R. Co. v. Ampey, 93 Va. 108, 25 S.E. 226, citing Code, § 3243. 4th Min. Inst., pt. 1, p. 574-5, 590, Id., pt. 2, p. 955-6, and 3 Rob. Pr. (New) 503-5. Shaver v. White, 6 Munf. 110.
" In England, the venue is material as serving for a direction as to what county the issue, if any should be made up, is to be sent for trial; but even there, it is of such little consequence, that the venue generally determined by the name of the county written in the margin of the declaration, as with us, if it be wrong, does not hurt; and it it be right, helps; as, if the venue in the margin be wrong, and that in the body of the declaration be right, or vice versa. With us, it is of no consequence whatever, in transitory actions, as I believe all personal actions are. For, upon a declaration filed, for example, in the court of Fauquier, stating the contract to be made in Culpeper, the court of Fauquier is the proper tribunal to try it, if the party is arrested in that county, unless he is an inhabitant of another county, and moves to dismiss the suit for that cause." Payne v. Britton, 6 101.
Leaving the Venue in a Different County.--The declaration's laying the venue in a different county, and omitting to state that the cause of action arose within the jurisdiction of the court, is not error sufficient in arrest of judgment. Buster v. Ruffner, 5 Munf. 27; Bank of Marietta v. Pindall465; Payne v. Britton, 6 101. See Turberville v. Long, 3 Hen. & M. 309.
And now it is provided by statute, that " It shall not be necessary in any declaration or other pleading to set forth the place in which any contract was made, or act done, unless when from the nature of the case, the place is material or traversable, and then the allegation may be as to a deed, note, or other writing bearing date at any place that it was made at such place, or as to any other act, according to the fact, without averring or suggesting, that it was at or in the county in which the action is brought, unless it was in fact therein." Code Va., § 3243, Code W. Va., ch. 125, § 32.
Against a Nonresident.--Under § 1, ch. 123, Code, an action at law, or suit in equity may be brought against a nonresident of the state in any county of this state wherein he may be found, or may have estate or debts due him, without regard to where the cause of action arose. Coulter v. Blatchley, 51 W.Va. 163, 41 S.E. 133; Vinal v. Core, 18 W.Va. 1; Beirne v. Rosser, 26 Gratt. 537; Carson v. Insurance Co., 41 W.Va. 136, 23 S.E. 552; Quesenberry v. Association, 44 W.Va. 512, 30 S.E. 73; Mahany v. Kephart, 15 W.Va. 609; Witten v. St. Clair, 27 W.Va. 762.
Venue of Action by Mortgagee against Mortgagor, or His Grantee.--A mortgagee may sue the mortgagor, or his grantee who has assumed the payment of the mortgage debt, to recover the balance of the mortgage debt, after crediting the net proceeds of the mortgaged property, in the jurisdiction in which such mortgagor or grantee resides, although it be other than that wherein the mortgage was foreclosed. Ellett v. McGhee, 94 Va. 377, 26 S.E. 874; Tatum v. Ballard, 94 Va. 370, 26 S.E. 871. See also, monographic note on " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197; monographic note on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
Venue of Injunction.--The venue of a bill of injunction is fixed by section 3436 of the Code, as amended by the act of March 6, 1900. Acts of 1899-00, p. 996, which provide that " jurisdiction of a bill for an injunction to any judgment, act, or proceeding, shall be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing or apprehended." Baker v. Briggs, 99 Va. 360, 38 S.E. 277. See also, monographic note on " Injunctions" appended to Claytor v. Anthony, 15 Gratt. 518; monographic note on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
B. IN CRIMINAL CASES.
General Statement.--All crimes are local and must be tried in the court which has jurisdiction over the locality where they were committed. Fitch v. Com., 92 Va. 824, 24 S.E. 272; State v. Greer, 22 W.Va. 800; State v. Lowe, 21 W.Va. 782; Anderson v. Com., 100 Va. 860, 42 S.E. 865.
Necessity of Averring Venue.--An indictment which charges that an offense was committed " within the jurisdiction of the court," but does not state where the offense was committed, is bad on demurrer, jurisdiction is matter of law. The place where an offense is committed is a matter of fact. It is necessary to aver and prove the place where the offense is alleged to have been committed. Early v. Com., 93 Va. 765, 24 S.E. 936.
And an indictment cannot be sustained without proof that the offense was committed in the county where the venue is laid, but a strong presumption thereof raised by the evidence suffices. Richardson v. Com., 80 Va. 124, and cases cited; Butler v. Com., 81 Va. 159; Savage v. Com., 84 Va. 582, 5 S.E. 563.
And where the indictment is for selling liquor in a district that has voted against the sale of intoxicating liquor therein, if the evidence fails to show that the offense was committed in the county and magisterial district wherein the indictment laid the venue, no conviction can be had. Savage v. Com., 84 Va. 582, 5 S.E. 563.
Proof of Venue.--The burden is just as great on the commonwealth to prove that the offense was committed within the jurisdiction of the trial court as it is to prove the commission of the offense itself. Fitch v. Com., 92 Va. 824, 24 S.E. 272; Anderson v. Com., 100 Va. 860, 42 S.E. 865. See generally, on the subject of the jurisdiction of the courts, monographic note on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
Where the evidence showed that the murder for which the defendant was convicted was committed on a farm in the county where the accused was tried it was held that the venue was proved. Cash v. Com., 1 Va. Dec. 1.
Venue of Crimes Committed within One Hundred Yards of the County Line.--Under art. 3, § 14 of the constitution of West Virginia, providing that " trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused and for good cause shown it is moved to some other county." The 12th section of ch. 152 of the Code of West Virginia, in so far as it authorizes a crime to be prosecuted and punished in a county, in which the offense was not committed, where the crime was committed within one hundred yards of the boundary of the county, is unconstitutional, null and void. State v. Lowe, 21 W.Va. 782, quoted as being settled law in State v. Hobbs, 37 W.Va. 812, 17 S.E. 380.
Article 3, § 14 of the constitution of West Virginia differs from the provision in the bill of rights of Virginia and the constitution of Virginia, in that they only require that crimes shall be tried in the vicinage of the place where committed and do not require that they shall be tried in the county where committed. See thorough discussion of this distinction in State v. Lowe, 21 W.Va. 782.
II. CHANGE OF VENUE.
A. IN CIVIL ACTIONS.
From Interest of Judge.--When the judge of a circuit, county, or corporation court, in which a prosecution is pending, is connected with the accused or party injured, or so situated in respect to the case as, in his opinion, to render it unfit that he should preside at the trial, he may enter the fact on record; and thereupon, the judge may change the venue as hereinbefore provided, or may procure, if the case be in the circuit court, the judge of another circuit or corporation court, if in a county court, the judge of another county, or if in the corporation court the judge of another circuit or corporation court, to try the case. Code of Va., § 4039; Code of W. Va., ch. 123, § 1.
This section is based upon 1 Rev. Code, ch. 69, § 54, page 239, where it was provided that, when a judge is interested in a case, " or is related to either of the parties or in any manner situated so as to render it improper in his judgment to preside the trial, it shall be lawful for such judge to cause at the same to be removed to the next circuit, and to the most convenient court in that circuit." In construing this section Tucker, P., said: " Here the power is given, but its exercise is left to the discretion of the judge. It is not for this court to sit in judgment upon the manner which he does exercise the discretion, for it is to depend upon his judgment; and therefore, from the very nature of the act, the propriety of that judgment depends upon his self consciousness, into which we cannot dive." Boswell v. Flockheart, 8 Leigh 364. And in Harrison v. Wissler, 98 Va. 597, 600, 36 S.E. 982. Buchanan, J., delivering the opinion of the court, said. the revisers of the Code instead of using the words " it shall be lawful," substituted the word " may." The presumption is that in thus substituting the word " may" for the term " it shall be lawful," it was only intended to shorten the statute by using the word which in its ordinary significance had the same meaning as the term for which it was substituted. The rule of construction, when there has been a revision, is that the old law was not intended to be altered unless such intention plainly appears in the new Code. See monographic note on " Removal of Causes" appended to Brown v. Crippin, 4 Hen. & M. 173, and " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457. See also, McConaughey v. Bennett, 50 W.Va. 172, 40 S.E. 540.
In Boswell v. Flockheart, 8 Leigh 364, Tucker, P., says: " On this subject I will remark, that the change of venue refers altogether to the jury. There is not, that I am aware, any such thing known, as a demand, at common law, that the judge shall remove the cause from his own forum because he is prejudiced against one of the parties. " To our own statute only, can we look for any provision on this subject, * * *."
What the Petition and Affidavit Must Set Forth.--In future, in all motions to change the venue, the petition and affidavit shall set forth the particular facts from which the petitioner is induced to believe that he cannot have a fair trial in the county where the venue is laid, or to which the cause has been removed, if the cause assigned by him is of such a nature as to admit of such a particular specification, and where the cause is assigned of such a general nature as to preclude a particular specification, he shall support his application by affidavits of disinterested persons.
In all applications to change the venue, the notice given to the opposite party, shall state the cause to be assigned in support of the application. Regula GeneralisVa. Cas. 88.
And see Boswell v. Flockheart, 8 Leigh 364, where it is held that " an application by a defendant for a change of venue, on the ground of general prejudices existing against him in the town where the cause is to be tried, should be supported by the affidavits of disinterested individuals."
Prejudice.--It is error for a circuit court to overrule a motion for a change of venue, when it is shown by affidavit that a fair and impartial trial could not be had in the county in which the suit was pending, arising from strong and unjust prejudices among the people against the original patentees of land, under whom the party making the motion claims to hold. Ott v. McHenry, 2 W.Va. 73.
Notice.--Under § 3, chap. 174 of the Code (2d Ed.) West Virginia, no notice is required to be given to the adverse party of a motion to change the venue, unless the motion is to be made in vacation. Ingersoll v. Wilson, 2 W.Va. 59.
When Application Should Be Made.--An application for a change of venue should be made at the earliest opportunity. And where the defendant had permitted four terms to pass, after the issues had been made up, before they made their motion, it was held that under the circumstances this was too late. Wheeling v. Black, 25 W.Va. 266, 280.
Where prejudice is alleged to have existed in the community against the defendant, if by using due diligence he could have made it appear at the trial of the cause by a motion for a change of venue, he will not be heard in a court of chancery on a motion for a new trial. Graham v. Citizens' Nat. Bk., 45 W.Va. 701, 32 S.W. 245.
Counter Affidavits May Be Read.--Upon a motion for a change of venue counter affidavits may be read; and if the court is satisfied from all the affidavits or other evidence for and against the motion, that the venue ought to be changed, it will in the exercise of its discretion remove the case, otherwise it will not. The exercise of this discretion is of course reviewable by the appellate court. Railroad v. Applegate, 21 W.Va. 172; Caperton v. Bowyer, 4 W.Va. 176; State v. Greer, 22 W.Va. 800; Wheeling v. Black, 25 W.Va. 266; Com. v. M'Cue, 1 Va. Cas. 137.
Change of Venue after Issue Formed.--The superior courts of chancery have power (upon general principles of equity) to direct the venue to be changed after issue joined in a county or other inferior court, where it appears that strong prejudices exist against the defendant, which were unknown to him until after such issue was joined, and that a fair and impartial trial cannot be expected in the court where the suit is pending. Darmsdatt v. Wolfe, 4 Hen. & M. 246.
B. IN CRIMINAL CASES.
General Statement. --In Com. v. RollsVa. Cas. 68, it is held that, while for a long period the court construed the act which is to be found in 1st Rev. Code ch. 65, § 6, (and is the same with 1 Rev. Code of 1819 ch. 67, § 8, only substituting " superior" for " district courts" ), to extend to misdemeanors. See Com. v. Bedinger, 1 Va. Cas. 125, and Com. v. M'Cue, 1 Va. Cas. 137, yet the majority of the court are of the opinion that neither the old law, nor the more recent one (Law of 1807), ch. 3, § 14, which uses nearly similar terms, authorizes either the general court formerly, or the circuit court now (1817), to change the venue in any but civil cases, to which cases alone the words of the act extend. The same ruling was made in Com. v. WildyVa. Cas. 69, where it was held that there could be no change of venue in any case of treason or felony. See also, Com. v. CarterVa. Cas. 131.
But between September 1818 and April 1819, the assembly passed an act which authorized the superior courts of law, for certain causes to change the venue in cases of treason or felony. For this act, see 1 Rev. Code (1819), ch. 169, § 9, p. 601. Vance v. Com.Va. Cas. 162; Brooks v. Com., 4 Leigh 669. And now see Code Va. § 4036; Code W.Va. ch. 159, § 15.
Present Statutes.--An important difference between the provision now made in West Virginia and that made in Virginia for a change of venue in criminal cases should be observed.
West Virginia Statute.--The West Virginia statute provides that, " A circuit court may, on the motion of the accused and for good cause shown, order the venue of the trial of a criminal cause in such county to be removed to some other county. Code W. Va., ch. 159, § 15.
Virginia Statute.--While the Virginia statute provides that, " A circuit court may, on the motion of the accused, or of the attorney for the commonwealth, or, without such motion, for good cause, order the venue for the trial of a criminal case in such court to be changed to some other circuit or corporation court; * * * ." Code Va. § 4036.
By the common law, crimes of every description can only be prosecuted in the county wherein they were committed; but if an impartial trial cannot be had in that county, the case might certainly be removed at the instance of the accused, and it might perhaps at the instance of the state. But under the constitutional provisions of this state it is obvious, that the venue can never be changed at the instance of the state without the consent of the accused; but as these constitutional provisions were conferred for the benefit of the accused they can be waived, and the venue can be changed on his motion or by his consent. State v. Lowe, 21 W.Va. 782; State v. Greer, 22 W.Va. 800.
Prisoner Must Show Good Cause.--On the prisoner's petition, and for good cause shown, he may have the venue changed to some other county. The burden is on the prisoner to show to the satisfaction of the court, good cause to have the trial of the case removed; and such cause must exist at the time the application is made. State v. Greer, 22 W.Va. 800; State v. Douglass, 41 W.Va. 537, 23 S.E. 724.
What Affidavit Must State.--An affidavit for change of venue must state facts and circumstances, from which the conclusion is deduced that a fair trial cannot be had, and not merely opinion that it cannot, and the court must be satisfied from those facts that he cannot or may not get such fair trial, and not from conclusions or opinions of the defendant or his witnesses. State v. Douglass, 41 W.Va. 537, 23 S.E. 724.
Must Also Have Independent Testimony.--The affidavit of the prisoner alone, that he cannot obtain a fair trial in the county, is not sufficient to sustain the motion; but he should be required to show by independent and disinterested testimony such facts as make it appear probable at least that his fears and beliefs are well founded, and the commonwealth may repel such facts, by testimony on her part. For this proposition Wormeley v. Com., 10 Gratt. 658, is cited and approved in State v. Greer, 22 W.Va. 800; State v. Douglass, 41 W.Va. 537, 23 S.E. 724; Muscoe v. Com., 87 Va. 460, 12 S.E. 790. See foot-note to Com. v. Bedinger, 1 Va. Cas. 125. In Chahoon v. Com., 21 Gratt. 822, it is said that the court in such cases, that is, where application is made for change of venue, exercises a large discretion. See also, monographic note on " Homicide" appended to Souther v. Commonwealth, 7 Gratt. 673.
Court Must Be Satisfied That Change Is Necessary--Counter Affidavits May Be Received. --In State v. Greer, 22 W.Va. 800, it is said: " The state can under no circumstances remove the case on its own motion, and the prisoner cannot have it done unless he shows good cause therefor. The burden is on the prisoner to show the good cause; and the affidavits filed or proof taken before the court may be submitted by the state; and if on the whole case made the court is satisfied, that good cause has been shown for a change of venue, it is the duty of the court to order the case to be removed for trial at some other county, otherwise to refuse to order such removal. That counter affidavits and counter proofs may be heard is well settled. McCue's Case, 1 Va. Cas. 137; Caperton v. Bowyer, 4 W.Va. 176; Wormeley's Case, 10 Gratt. 658; Railroad Co. v. Applegate, 21 W.Va. 172. In Com. v. Bedinger, 1 Va. Cas. 125; Ingersoll v. Wilson, 2 W.Va. 59, and in Ott v. McHenry, 2 W.Va. 73, no counter affidavits or proofs were heard."
On the other hand, when such facts are stated and shown by the prisoner, and not successfully opposed or explained by the commonwealth, no arguments of inconvenience or delay should be permitted to stand in the way of the great end to be attained--a fair and impartial trial. Muscoe v. Com., 87 Va. 460, 12 S.E. 790.
Where a prisoner indicted for murder showed, that the sheriff of the county was against him and wrote a letter calculated to prejudice him, which was published in a newspaper printed and circulated in the prisoner's county, and great excitement was shown to exist, and ten months after the homicide threats of lynching him were made by a mob, the most of whom lived in or near the county seat, where he would have to be tried. Held, good cause was shown for a change of venue. State v. Greer, 22 W.Va. 800.
In Muscoe v. Com., 87 Va. 460, 12 S.E. 790, the prisoner indicted for murder made affidavit that he could not have an impartial trial by reason of prejudice against him and presented extracts from newspapers alleging his guilt, calling especial attention to a card by the mayor of the city published soon after his arrest and circulated in a newspaper published in the said city, wherein the mayor stated that the affiant was the man who had committed the murder, and called upon the citizens to desist from any attempt to break the law, by lynching the affiant, and assuring the public that the affiant would be hung in thirty days after sentence was passed upon. In opposition to the motion, the commonwealth introduced several witnesses, who testified that not greater than the usual prejudice existed, and that in their opinion a fair trial could be had: It was held that a change of venue was properly denied.
Should First Ask That Jurors from Another County Should Be Sent for.--Where a party fears that he cannot get an impartial jury in the county, he should first ask that jurors should be sent for from another county. And this not being done, and an impartial jury being in fact obtained is conclusive evidence that the motion for a change of venue was properly overruled. Wright v. Com., 33 Gratt. 880; Joyce v. Com., 78 Va. 287; Waller v. Com., 84 Va. 492, 5 S.E. 364; A. & D. R. Co. v. Reiger, 95 Va. 418, 28 S.E. 590. See monographic note on " Juries" appended to Chahoon v. Com., 20 Gratt. 733. But see State v. Flaherty, 42 W.Va. 240, 24 S.E. 885.
But in State v. Flaherty, 42 W.Va. 240, 24 S.E. 885, however, it is said, " That a jury is found free from exception personal to its members, is not a final test. Influences, silent yet potential may permeate the community, endangering an impartial trial" and the action of the court in refusing a motion for a change of venue because a jury passing the usual examination was obtained, was held to be error for which the judgment was reversed, and a new trial granted.
Directing Cause to Be Tried at Particular Term--Surplusage.--Indictment for felony in the circuit court of Warwick; the court for good cause sent the case to the circuit court of York, to be tried at the term of that court to be held on the 8th day of June, 1831; the circuit court of York, doubting its competency to try the case at that term, which was a special one, continued it till the next regular term of the circuit superior court of York; and the prisoner was afterwards tried there, and convicted; held, the circuit court of Warwick had no power to direct the case to be tried at any particular term of the circuit court of York; but the direction that the case should be tried at the June term 1831, is to be rejected as surplusage; the substance of the order is a change of the venue from Warwick to York. Brooks v. Com., 4 Leigh 669.
Necessity for Arraignment.--A prisoner having been arraigned, and pleaded in the county in which the offense was committed, need not be arraigned, nor required to plead, in the county to which the venue is changed. Vance v. Com.Va. Cas. 162.
Plea to Jurisdiction.--The venue being changed from the county of R. to that of W. a plea that the murder was committed in R. and that therefore the court of W. has no jurisdiction, is bad on demurrer. Nor can the array of the jury be challenged because they were summoned by the sheriff of W. Vance v. Com.Va. Cas. 162. See also, monographic notes on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457, and " Juries" appended to Chahoon v. Com., 20 Gratt. 733.
Certificate of Judge--What Necessary.--The act of assembly which directs, that on a change of the venue in a case of felony, the judge shall certify the recognizances, together with a copy of the record of the case, " and all other papers which he may deem necessary to the trial," does not require that the judge should certify a copy of the record of the examining court. Vance v. Com.Va. Cas. 162. As to certifying copies of the record of the case, which it is now the duty of the clerk to do, see Code Va., § 4038; Code W. Va., ch. 159, § 17. See also, Shifflet v. Com., 14 Gratt. 652, 666.
Failure of Record to Show Indictment Found by Grand Jury.--Where, upon the motion of the prisoner, the venue is changed, and the record sent by the clerk of the court from which the trial is removed, to the court to which it is sent, does not show that the indictment was found by the grand jury; but the prisoner is tried and convicted; upon a writ of error to the court of appeals, that court may direct a certiorari to the court from whence the case was sent, for a better record: and if it appears from the record returned, that the indictment was found by the grand jury, the judgment will not be reversed. Shifflet v. Com., 14 Gratt. 652.
[*]For monographic note on Venue, see end of case.