Chahoon v. Commonwealth

• Decision Date: 13 December 1871
• Citation: 62 Va. 822
• Parties: CHAHOON v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 822

CHAHOON v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 13, 1871

1. A point in a cause in which the judges of the court of appeals are equally divided, stands affirmed by virtue of the act Code, ch. 209, § 7, p. 841, Sess, Acts 1866-67, p. 937, as well where it is a ruling of the court below in the progress of the cause, as where it is the final judgment of the court in the case: and this decision is final and irreversible; and cannot be changed upon a second appeal in the cause.

2. § 14, article 6 of the constitution, which provides that Corporation courts shall have similar jurisdiction which may be given by law to the Circuit courts of the State, was not intended to restrict, but to enlarge, the jurisdiction of these courts, and to elevate them to the grade and dignity of Circuit courts. And it was competent, therefore, for the Legislature to give to the Corporation courts jurisdiction to try cases of felony, though the jurisdiction in such cases was taken away from the Circuit courts.

3. Under the act of 1866-67, passed April 27, 1867, to revise and amend the criminal procedure, the Corporation court of Richmond was authorized to empanel a grand jury on the 2d of May 1870.

4. § 14, article 6 of the constitution, which directs a Corporation court to be held as often and as many days in each month as may be prescribed, does not require that the whole term shall be held in the same calendar month; and under the act of April 7, 1870, Acts of 1869-70, p. 44, § 10 which fixes the terms of the Corporation court of Richmond to commence on the first Monday, and continue so long as the business before the court may require, the court may continue its session from the first Monday in one month until the first Monday in the next month. And a grand jury empaneled on the 2d day of May may find an indictment on the 4th of June the term continuing until that day.

5. The court before which a prisoner is arraigned for trial, if qualified jurors not exempt from serving cannot be conveniently found in the county or corporation, may send to another county or corporation for such jurors. And in acting in such case the court must have a large discretion.

6. J S R S and C are under a joint indictment for a conspiracy to defraud the estate of H, and each of them is under a separate indictment for forging or uttering the same forged note of H. They meet together to consult about their defence; L, the counsel of R S, G, the counsel of J S, being with them. On the trial of C, R S is called by the Commonwealth as a witness, and testifies as to a question he put to C and C's answer to it. C then calls L as a witness, states what R S had said, and asks L what answer C made to the question. L says he considered all that passed at that meeting was under the seal of professional confidence, and declines to answer unless released by R S. C moves the court to require L to answer, but the court refuses. HELD:

1. All that L heard at that meeting in relation to the subject of consultation was privileged.

2. R S did not, by his giving evidence of what passed at the meeting, release L from his obligation to be silent as to what passed there.

3. The privilege extended to all three of the parties, and the consent of all was necessary to authorize L to give the evidence.

This was a continuation of the case of George Chahoon, reported 20 Gratt. 733. When the case went back to the Hustings court of Richmond, the prisoner was put on his trial at the March term 1871; and after a trial lasting from the 17th to the 24th of the month, the jury could not agree upon a verdict, and on the 28th, with the consent of the prisoner, they were discharged.

At the June term of the court the cause was again called for trial and of the venire men summoned to try the prisoner, all of whom but one were present, none being found duly qualified, the prisoner moved the court to award a tales to the sergeant of the city for the summons of a sufficient number of jurors from the city to make up a jury for the trial of the cause. But it appearing to the satisfaction of the court, by evidence adduced and heard, that qualified jurors could not be conveniently found in the city, two writs of venire facias were issued to the sergeant, directing him to summon thirty jurors from the corporation of Fredericksburg, and twenty-five from the city of Lynchburg. To this action of the court the prisoner excepted. And thereupon the prisoner further moved the court, after his previous motion had been overruled, and after the decision of the court to send elsewhere for a jury had been made, for a change of venue, upon the proof heard upon the previous motion. But the court refused to change the venue: and the prisoner excepted. The evidence is sufficiently stated in the opinion of Judge Moncure.

In the progress of the trial the prisoner excepted to a ruling of the court refusing to require John Lyon, a witness introduced by the prisoner, to answer a question put to him. Lyon refused to answer the question, on the ground that it required of him a disclosure of a confidential communication. The facts are fully set out in the opinion of Judge Moncure.

The jury found the prisoner guilty of uttering the forged instrument, knowing it to be forged; and fixed the term of his imprisonment in the penitentiary at two years; and the court sentenced him accordingly. And the prisoner thereupon applied to this court for a writ of error; which was awarded.

Const. art. 6, § 14, providing that corporation courts shall have " similar jurisdiction to that which may be given by law to circuit courts, was not intended to restrict, but to enlarge, the jurisdiction of these courts, and to elevate them to the grade of circuit courts; and it was, therefore, competent to give the corporation courts jurisdiction in cases of felony, though it was taken away from the circuit courts.

Wells and Crump, for the prisoner.

The Attorney General and George D. Wise, for the Commonwealth.

OPINION

MONCURE, P.

The sixth and last assignment of error in this case is the first which will be disposed of, viz: " That the accused should have been sent to an examining magistrate before being placed on his trial."

This is the same question which was presented by the first bill of exceptions taken by the accused on his first trial in this case, and this court being equally divided in opinion upon it when the case was formerly before us, the judgment of the court of Hustings thereon was therefore affirmed. Chahoon's Case, 20 Gratt. 733, 788. That affirmance was in pursuance of the Code, p. 841, § 7, ch. 209, Acts of Assembly 1866-'67, p. 937, which requires an affirmance " in those cases where the voices on both sides are equal," and which applies as well to any ruling of the court below in the progress of the cause therein, as to the final judgment of the said court in the case. This question having thus already been decided by this court, the decision is final and irreversible, and could not be changed even if the court were now disposed to change it; as is not the case.

We will now proceed to consider the other assignments of error, in the order in which they are made. In regard to the first three, they present questions which properly ought to have been raised, if at all, before pleading to the indictment, but which are now raised for the first time in this court, on the present writ of error, unless they were embraced in the motion in arrest of judgment which was made in the court below. Without deciding whether or not it be now too late to raise these questions, and conceding, for the purposes of this case, that they are presented in due time, how ought they to be answered? And,

1st. That the Hustings court of the city of Richmond had no jurisdiction of the case.

This assignment of error is based upon section 14 of article 6 of the constitution, (Acts of Assembly 1869-'70, p. 622,) which declares that, " for each city or town in the State containing a population of five thousand, shall be elected, on the joint vote of the two houses of the General Assembly, one city judge, who shall hold a Corporation or Hustings court of said city or town, as often, and as many days in each month, as may be prescribed by law, with similar jurisdiction which may be given by law to Circuit courts of this State, and shall hold his office for a term of six years," & c.

It is argued that this is the only provision of the constitution which prescribes the jurisdiction of a Corporation or Hustings court; that this requires it to be similar to that which may be given by law to the Circuit courts; that the constitution does not prescribe the jurisdiction of the Circuit courts, but declares that it " shall be regulated by law; " Art. 6, § 1; that the Circuit courts have not had, since the adoption of the constitution, any jurisdiction for the trial of felonies, except in the single case of election by the accused (which is not this case), and that, therefore, the Hustings court can have no such jurisdiction.

This is plausible, but we think not a sound, argument. It places too strict and literal a construction on the words, " with similar jurisdiction which may be given by law to the Circuit courts of this State." We think the constitution ought to be construed like other instruments; that is reasonably, and with a view to effectuate the manifest intention of the framers of the instrument. It would certainly be a most unreasonable and inconvenient construction of the constitution, to say that it gives to a Corporation or Hustings court similar, and only similar jurisdiction to that which may be given by law to the Circuit courts. According to that construction such court was at once invested by the...