Noell v. Commonwealth

• Decision Date: 18 January 1923
• Citation: 115 S.E. 679
• Parties: NOELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

115 S.E. 679

NOELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Prentis, J., dissenting in part.

Error to Corporation Court of City of Danville.

W. T. Noell was convicted of an assault, and he brings error. Reversed.

Meade & Meade. Withers, Brown & Benton, and Malcolm K. Harris, all of Danville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

KELEY, P. The defendant, W. Y. Noell, was indicted for an attempt to commit rape upon one Lora Gee, a female 12 years of age. The jury found him not guilty of the attempt charged, but guilty of an assault, and fixed his punishment at a fine of $500 and imprisonment in jail for a term of 12 months. The court, having first overruled a motion for a new trial, pronounced sentence in accordance with the verdict, and thereupon the defendant obtained this writ of error

The question which we shall consider first arises out of the denial by the lower court of the defendant's motion to set aside the verdict of the jury and grant a new trial. Among the grounds upon which this motion was based were these:

(a) "That during the trial of this cause as shown by affidavits herewith filed and asked tobe made a part of the record, the jury, under the circumstances set out in affidavits, was allowed to view the premises and make certain tests and obtain certain evidence in the absence of the accused, thereby rendering the verdict of said jury void and of no effect."

(b) "That the jury was sent by the court to view the premises and that said jury went through a series of tests as shown by affidavits hereto attached, thereby constituting each member of said jury a witness without the privilege accorded to the defendant to be present to observe how and under what circumstances the tests were made, and without the privilege of cross-examining the said witnesses."

The material facts with reference to the view by the jury are these:

At the conclusion of all the evidence in the case, and without any motion for a view by either the commonwealth or the defendant, the following colloquy took place between the court and counsel:

"By the Court: The gentlemen of the jury have expressed a desire to see the premises. Let the sergeant take them over there while we are preparing the instructions in this case.

"By Mr. Harris: With instructions to the sergeant that nobody else goes with them?

"By the Court: Yes, sir."

No protest or objection was made by either side to the suggestion of the court, and the sergeant thereupon took the jury to the scene of the alleged crime, returning with them in about 50 minutes. Neither the prisoner nor counsel on either side nor the judge accompanied the jury, and while they were out for the view the court and counsel were in the judge's chambers, discussing the instructions.

No directions were given by the court to the jury or to the sergeant as to the manner in which the view should be made, or as to their conduct at the scene. It was charged that the offense was committed on the fourth floor of a tobacco factory. The prosecutrix had testified that she screamed for some minutes when the defendant made the alleged attempt and before he was finally repulsed. The latter had denied the charge against him, and, in order to corroborate him and to contradict the prosecutrix, certain witnesses had testified that they were at certain designated points in the factory at the time in question and did not hear an outcry. Whether they could have heard the screams of the prosecutrix if she uttered them was, of course, an important question. While the jury were in the factory they made certain experiments and tests by dividing themselves into groups and calling back and forth to each other from the fourth floor to other floors and points in the factory. These tests and experiments were unknown to the defendant or his counsel until after the verdict was rendered.

We are called upon to decide several independent but kindred questions arising upon the foregoing facts. The first of these is whether the trial courts in Virginia have jurisdictional power to direct a view by the jury in any case, unless requested to do so by one of the parties to the litigation. There was no such request in this case, the view having been directed because "the jury expressed a desire to see the premises." Section 6013 of the Code, so far as material here, provides that:

"The jury may, in any case, civil or criminal, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing, relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision."

This provision in the statute law of the state first appeared in the Code of 1849 (chapter 162, p. 629, § 10), and with the exception of the words "civil or criminal, " added by the act of December 10. 1903 (Acts 1902-1904, p. 605) has remained unchanged.

Whether as a matter of common law the trial courts have the power in their discretion to permit the jury to visit and view the premises is a question upon which there is a conflict of authority. Litton's Case, 101 Va. 833, 845, 44 S. E. 923. The uncertainty of the law in this respect was doubtless the reason which prompted legislative action on the subject, and in most of the states the matter is now regulated by statute. In 22 Ency. P1. & Pr. p. 1054, cited in Litton's Case, supra, the following statement appears in the text:

"In the United States the right to a view is generally regarded as being dependent on statutes and is controlled by them. Accordingly it is not the usual practice to grant a view except pursuant to an express statute or by consent of the parties."

And in Litton's Case, supra, the opinion of Judge Cardwell, after mentioning the conflict of authority as to the power of the court to grant a view at common law, says:

"But in our opinion, the matter is controlled in this state by statute."

So far as we have been able to find, no case ever came to this court in which a view was ordered prior to the enactment of the statute on the subject, and none since in which the view has been ordered without a motion by one of the parties. The statute undertakes to occupy the whole field upon this subject, and in our opinion a view ought not to be ordered in any case except upon the motion of one or both parties, or by consent of both parties, which would be tantamount to a joint motion. It would, we think, be error to order a view over the protest of both parties, but where, as here, neither party objects, we hold that their acquiescence is equivalent to consent. The contention of the counsel for the accused that it was error topermit the view in this case because neither party moved for it is therefore overruled.

The next inquiry to be disposed of is this: When a view is ordered in a felony case, does the prisoner always have the right to accompany the jury if he so desires? The answer, by what appears to be a clear majority of the decided cases, is in the affirmative. There is no decision upon this particular question in Virginia, nor do we know of one elsewhere which discusses it separate and apart from the question of the prisoner's power to waive the right. In Litton's Case, supra, this court was careful to say that it did not appear from the record that the prisoner was not present, or that he was "denied that right." In 16 Corpus Juris, p. 816, the text says:

"It is generally held that the defendant is entitled to be present when the jury are taken to view the place of the crime, on the ground that this is the taking of evidence and a part of the trial, "

and a number of cases are cited in support of this statement. Prof. Wigmore (3 Wig. Ev. § 1S03), takes the opposite view, saying that, while the courts would ordinarily not refuse to permit the accused to attend a view if he so desired, there is no proper ground upon which to base an unbending rule that he has the right to attend in every case. The argument of this learned author, however, depends fundamentally upon the assumption that the view is not a part of the trial, and that it does not constitute a taking of evidence. The correctness of this assumption, particularly with reference to the law in this state; will presently be considered.

In Starr v. State, 5 Okl. Cr. 440, 115 Pac. 356 (one of the leading cases in support of the proposition hereinafter discussed that the prisoner may waive his right to be present at the view) the court says that—

"It would be better and safer for him to accompany the jury, if convenient, to see that nothing improper occurs at the view."

And it may be confidently asserted that the authorities generally are in accord in holding that the trial courts ought always to permit the prisoner to attend if he so desires. As said in State v. Slorah, 118 Me. 203, 106 Atl. 768, 4 A. L. R. 1256:

"The right of the accused to be present, * * * if he demands it, is very generally recognized as inherent under a proper consideration of the rights of the respondent in a criminal case."

This brings us to the more difficult and more important question whether an accused person on trial for a felony can waive his right to be present at the view. This precise question has never been definitely decided in Virgipia. The decisions in the other states are in such conflict, due partly to varying constitutional and statutory provi sions and partly to contrariety of reasoning and opinion among judges in construing such provisions, that we find ourselves unable to rest the decision in this case entirely upon precedent. We must therefore undertake to settle the meaning of the pertinent Virginia statutes upon principle, in the light of certain doctrines which have become firmly embedded in the criminal law of the state, and with the aid of such decisions from other jurisdictions as seem to us most in point and best sustained by reason.

Section 4894 of the Code of 1919 provides:

...