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A judgment note made more than four months prior to an adjudication of bank

ruptcy upon which an execution is issued within four months, is not necessarily fraudulent. Mr. A. H. Coffroth, for plaintiffs in error. Mr. A. J. Colborn, contra. SHARSWOOD, J. This was a feigned issue in the court below to deter mine the validity of a judgment entered upon the 26th day of February, 1872, upon a judgment note executed by Lewis A. Turner, for the sum of $204, on the 21st October, 1871, for a just debt owing by him to Sleek & Blackburn. It was payable in sixty days. On the 10th of April, 1872, certain creditors of Turner presented a petition to the district court of the United States for the Western District of Pennsylvania to have Turner adjudicated a bankrupt. Under these proceedings, an assignment was made to the plaintiff below on July 5th, 1871, and the fund in court having been raised under an execution upon the judgment, the assignee came in and claimed the money on the ground that the judgment was a fraudulent preference, and void under the thirty-sixth section of the Bankrupt Law, the act of Congress of March 2, 1867. This section provides that “if any person, being insolvent or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached or seized in execution, or makes any pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property or the value of it from the person so receiving it or so to be benefited.”

On the trial of the feigned issue, the learned judge was requested to charge the jury “ that if the note on which the defendant's judgment was entered was given for a valuable consideration more than four months before the commencement of the proceedings in bankruptcy against L. A. Turner, then the judgment and fi. fa, issued thereon are valid, although the judgment was entered and fi. fa. was issued within four months of the commencement of said proceedings in bankruptcy, and the verdict must be for the defendants.” This point the learned judge refused to affirm, but on the contrary, instructed the jury that when the entry of judgment and execution and levy are made within the four months before

Vol. I.]

MURPHY v. THE COMMONWEALTH.

[No. 11.

the petition of bankruptcy, the preference thus given is invalid, although the judgment note was given more than four months before. In this we think there was error, and as it was an error which ran through and infected the whole charge, it will be unnecessary to consider the other assignments.

It is clear that Turner did not procure the judgment to be entered on the 26th of February, 1872, within four months of the filing of the petition. As to that entry he was entirely passive. He had made and delivered the judgment note on October 4,1871, more than four months before the petition, for an honest debt, to which he could interpose no defence. He was entirely passive so far as the entry of the judgment and the issuing of the execution was concerned. How then could he be said, in any sense, to have procured the judgment and execution, and thereby given the defendants a preference? Had the note been a simple note, and the defendants had commenced suit upon it, and in due course obtained judgment for want of a plea or affidavit of defence, the case would have been no stronger. The supreme court of the United States have decided that something more than passive non-resistance in an insolvent debtor is necessary to invalidate a judgment and levy on his property when the debt is due and he has no defence. Wilson v. Bank of St. Paul, 31 Leg. Int. 29; 1 Am. L. T. R. (N. S.) 1. It was held also in that case, that though the judgment creditor may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law. We regard this decision as directly in point, and are bound to receive it as an authoritative exposition of the act of Congress by the highest tribunal in the land, invested by the Constitution with the power of deciding such questions in the last resort.

Judgment reversed, and venire facias de novo awarded.

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COURT OF APPEALS OF VIRGINIA.

[TO APPEAR IN 24 GRATTAN.]

CRIMINAL LAW. - CONVICTION OF ASSAULT WILL NOT BAR INDICT

MENT FOR FELONY. - - EVIDENCE OF WIFE OF CONFESSION OF HUS-
BAND. - MALICE. PRACTICE.

MURPHY v. THE COMMONWEALTH.

of the

1. The act of March 30th, 1871, Sess. Acts 1870-71, p. 332, does not give justices

peace jurisdiction to try a case of felony; and the conviction and punishment of a party by a justice for an assault and battery will not bar a prosecution for wounding with intent to kill

, by the same act for which he was punished by the justice. 2. If the accused has been indicted and convicted for a mere assault and battery in

the county court having jurisdiction of such offence generally, the conviction will not be a bar to an indictment for a felony, in the perpetration of which the assault

and battery was committed. 3. On a trial for an assault with intent to kill, the witness upon whom the assault

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MURPHY v. THE COMMONWEALTH.

(No. 11.

was alleged to have been made was asked if he did not tell his wife that the prisoner acted only in his own defence. 1. The answer to the question may tend to criminate himself, and the testimony is inadmissible. 2. It required him to state a communication supposed to have been made by him to his wife, which, if made, was a confidential communication, and which he was not bound to

disclose. 4. Where a question is put to a witness which he answers, and which relates to a

collateral matter not connected with the subject of the prosecution, his answer to

that question is conclusive, and cannot be contradicted. 5. In this case, after the witness was asked the question whether he did not state to

his wife that the defendant had acted only in his own defence, and he had answered the question denying that he had done so, the wife of the witness was introduced to prove the statement was made to her. She is not a competent witness to prove it

, though at the time it was alleged to have been made they were living apart from each other, but not divorced. 6. A man is taken to intend that which he does, or which is the natural and neces

sary con sequence of his own act. Therefore, if the prisoner wounded the prosecutor, by the deliberate use of an instrument likely to produce death under the circumstances, the presumption of the law is that he intended the consequences that

resulted from said use of said deadly instrument. 7. Malice may be inferred from the deliberate use of a deadly weapon, in the absence

of proof to the contrary. 8. Where there are two counts in an indictment for a felony, and there is a general

finding by the jury of " guilty,if either count is good, it is sufficient.

At the October term for 1872 of the county court of Scott County, Alexander Murphy was indicted for making an assault on John Murphy, with intent to maim, disable, disfigure, and kill him. The indlictment contains two counts. The first charged the assault with the felonious and malicious intent, in the usual form ; and there was no doubt that it was a good count. The second charged that “ Alexander Murphy, on the day of —, in the year 1872, in the county of Scott, did make an assault in and upon the body of one John Murphy, and him the said John Murphy feloniously did strike on the head with a hoe, and by so striking the said John Murphy on the head as aforesaid, with the hoe as aforesaid, he, the said Alexander Murphy, then and there feloniously and maliciously did cause the said John Murphy great bodily injury, with intent, him the said John Murphy, to maim, disfigure, disable, and kill ; against the

peace and dignity of the commonwealth.”

The proceedings in the case are fully stated in the opinion of Judge Moncure.

J. A. Campbell & Lane, for the prisoner.
The Attorney General, for the commonwealth.
MONCURE, P., delivered the opinion of the court.

This is a supersedeas to a judgment of the circuit court of Scott County, affirming a judgment of the county court of said county, convicting the plaintiff in error, Alexander Murphy, of felony, in feloniously and maliciously striking and wounding his father, John Murphy, with intent to maim, disfigure, disable, and kill the said John Murphy. The errors complained of appear in the several bills of exception, which were taken to opinions of the county court given during the progress of the trial. We will notice them in the order in which the said bills of exception were taken and are numbered in the record. And,

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MURPHY v. THE COMMONWEALTH.

[No. 11.

First. We are of opinion that the county court did not err in overruling the motion of the plaintiff in error to withdraw his plea of not guilty, and file the special plea set out in the first bill of exceptions. Even if the special plea had been offered in time it presented no bar to the prosecution, and was properly rejected on that ground. It avers that the plaintiff in error had been charged before a justice of the peace of said county with having committed an assault upon the said John Murphy; that the said justice had jurisdiction of the case, and after hearing all the evidence, found the accused guilty of the assault charged, and adjudged him to pay the sum of ten dollars as a penalty therefor and costs; that the said judgment was final, unrevoked, and in full force; that the assault and battery so charged, and of which he was so convicted before said justice, is the same identical offence set forth in said indictment; and that the record of said proceeding had been lost, so that the same could not be produced; but that he was ready to make proof of the same by said justice and others.

This proceeding before a justice of the peace must have been under the act approved March 30, 1871, entitled " An act to extend the jurisdiction of police justices and justices of the peace in certain cases;” Acts of Assembly, 1870–71, p. 362. But that act, while it gives to justices of the peace “concurrent jurisdiction with the county and corporation courts of the state, of all cases of assault and battery, not felonious, occurring within their jurisdiction,” gives them no jurisdiction whatever of such cases of assault and battery as are felonious. And as the assault and battery charged in the indictment in this case, and of which the accused was convicted by the verdict and judgment, was felonious, therefore a justice of the peace had no jurisdiction of the case; and any judgment which may have been rendered by a justice as alleged in said plea is null and void, and was no bar to the prosecution for the felony.

But even if the accused had been indicted and convicted of a mere assault and battery, in the county court having jurisdiction of such an offence generally, the conviction would not have been a bar to an indictment for a felony in the perpetration of which the assault and battery was committed. The misdemeanor in such case is considered as merged in the felony. “Where the prisoner has been convicted of a misdemeanor, and is afterwards indicted for a felony, the two offences have been considered so essentially distinct, that a conviction of one was deemed no legal bar to the indictment of the other. In the Commonwealth v. Roby, 12 Pick. R. 496, the misdemeanor was an assault charged to have been committed with intent to murder. After conviction of this offence, the party assaulted died, and then the prisoner was indicted of murder. He pleaded autrefois convict, to which there was a demurrer; and after full argument and great consideration, the judges came unanimously to the conclusion, that the facts constituting the murder would not have been competent evidence to warrant a conviction of the assault, and judgment was entered that the plea was not good, and that the prisoner should answer over to the indictment.” 3 Rob. Pr. (old ed.) 131.

Secondly. We are of opinion that the county court did not err in excluding certain evidence from the jury, as mentioned in the second bill of exception. It is stated in that bill, "that upon the trial of this case, the

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MURPHY v. THE COMMONWEALTH.

(No. 11.

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commonwealth introduced John Murphy as a witness; and upon his examination, he was asked by the defendant if he did not state to his wife, Nancy Murphy, at his own house, a short time after he was struck by the defendant, that the defendant acted only in his own defence; to which he replied, that he did not make any such statement. The defendant further asked the said witness, Murphy, if he was not living at the time in a state of adultery, and that the difficulty arose by his espousing the cause of the said Mary Elliott; to which he replied that he never had any sexual intercourse with the said Elliott. The said Nancy Murphy was then called by the defendant, and stated that at the time of the said difficulty, said John Murphy and Mary Elliott were living together as man and wife; that he had driven the witness, his wife, off, some six or seven years since, and also his children, and they still live apart; and further, that he stated to her at his own house, a short time after the difficulty, that he would rather be killed than that Mary Elliott should be hurt; and that at the time Alexander Murphy, the defendant, struck him, he was acting only in his own defence; all of which, upon the motion of the commonwealth, was excluded from the jury;” to which the defendant excepted.

The evidence thus excluded consisted of answers of the witness, John Murphy, to two questions put to him by the defendant on cross-examination; and a statement made by the witness, Nancy Murphy, on her examination in chief by the defendant. The court did not err in excluding the first question propounded to the witness, John Murphy, and his answer thereto: 1st, because the question tended to criminate the witness; and 2d, because it required him to state a communication supposed to have been made by him to his wife, which, if made, was what the law considers a confidential communication, and which he was not bound to dis

a close. Nor did the court err in excluding the second question propounded to the said John Murphy, and his answer thereto : 1st, because the question tended to criminate the witness ; 2d, because the fact sought to be proved by the answer to this question was wholly irrelevant and inadmissible evidence in the case ; and 3d, because the answer of the witness to the question, “ that he never had any sexual intercourse with the said Elliott, denied the guilt imputed to him by the question ; which being a collateral matter not connected with the subject of the prosecution, his answer to the question was conclusive, and could not be contradicted by any testimony on behalf of the defendant. In regard to the statement made by the witness, Nancy Murphy, wife of the said John Murphy, the court did not err in excluding it, if not because the whole of it tended to criminate her husband, at least, because that part of it which related to John Murphy and Mary Elliott's living together as man and wife, and to his having driven off his wife and children, and living apart from them, was irrelevant and inadmissible evidence in the case, and because the residue of it disclosed communications supposed to have been made by the husband to the wife, is what the law considers confidential; and which, therefore, she had not a right to disclose.

To show that the evidence of the wife was admissible in this case, 1 Phil. on Ev. top page 68, marg. 84, was referred to, and relied on by the counsel for the plaintiff in error. It is there said, that “although the husband

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