Opinion
September 11, 1936
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning and Eggleston, JJ.
APPEAL AND ERROR — Record — Failure to Make Evidence or Instructions Part of Record — Case at Bar. — In the instant case, a prosecution for housebreaking, a motion to dismiss the writ of error was sustained because neither the evidence nor the instructions were identified or made a part of the record by bill or certificate of exceptions.
Error to a judgment of the Circuit Court of Washington county. Hon. Walter H. Robertson, judge presiding.
Dismissed.
The opinion states the case.
L. P. Summers and Andrew R. Summers, for the plaintiff in error.
Abraham P. Staples, Attorney-General, Edwin H. Gibson, Assistant Attorney-General, and Joseph L. Kelly, Jr., Special Assistant Attorney-General, for the Commonwealth.
Glenn Ingle was jointly indicted with Karo Wilson for housebreaking, tried separately and convicted by a jury. His punishment was fixed at two years in the penitentiary and the trial court pronounced sentence.
The Attorney-General has moved to dismiss the writ of error granted in this case because neither the evidence nor the instructions given the jury by the lower court are identified and made a part of the record either by bill or certificate of exception.
We have carefully considered the record and we are forced to conclude that the motion to dismiss the writ of error heretofore awarded must be sustained upon the ground stated in the motion; that is, that neither the evidence nor the instructions are identified, nor brought into the record by any bill or certificate of exception.
In reaching our conclusion to dismiss the writ of error we are controlled by the principles stated in the following Virginia cases: Wright v. Commonwealth, 111 Va. 873, 69 S.E. 956; Thaniel v. Commonwealth, 132 Va. 795, 111 S.E. 259; Reynolds v. Commonwealth, 135 Va. 722, 116 S.E. 514; Patterson v. Commonwealth, 139 Va. 589, 123 S.E. 657; Boggs v. Commonwealth, 153 Va. 838, 149 S.E. 464; Ross Cutter Silo Co. v. Rutherford, 157 Va. 674, 161 S.E. 898; Nethers v. Nethers, 160 Va. 335, 168 S.E. 428.
The writ of error is dismissed.
Dismissed.