Farrow v. Com., 4412

Decision Date10 October 1955
Docket NumberNo. 4412,4412
Citation197 Va. 353,89 S.E.2d 312
CourtVirginia Supreme Court
PartiesARLINGTON FARROW v. COMMONWEALTH OF VIRGINIA. Record

T. W. Messick and J. A. Ellett, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

This case is before us on a writ of error to a judgment entered upon the verdict of a jury finding the defendant, Arlington Farrow, a 33 year old negro, guilty of killing Hugh Conway Broadwell, Deputy Sheriff of Giles county. In accordance with the jury's verdict of murder in the second degree the defendant was sentenced to confinement in the penitentiary for a period of 15 years.

In his brief the defendant reduces his twelve assignments of error to six and actually argues only three questions, namely, (1) whether the trial court erred in denying his motion for a change of venue, (2) whether the evidence is sufficient to support the verdict and (3) whether the trial court erred in granting and refusing instructions. We shall first consider the contention that the trial court erred in denying his motion for a change of venue.

On the first day of the trial, June 21, 1954, the defendant filed his written motion under Code, § 19-198 for a change of venue, wherein he alleged that there existed in Giles county 'prejudice of such character as to prevent a fair and impartial trial.' The motion stated as grounds that the county newspaper had given wide publicity to the case and grossly misled the citizens of the county; that the newspaper not only published such news articles but editorially advocated the giving of funds for the family of the deceased officer and to employ counsel to assist in the prosecution of defendant; that the sheriff, his deputies and the jailer refused to permit defendant's wife, father, brother and sisters to see, visit or consult with him in and about his affairs and to arrange for his defense.

We agree with the trial court in its ruling that there is no 'evidence here for feeling there is anything to prevent this defendant from securing a fair and impartial trial by a jury in Giles county.'

An application for a change of venue in a criminal case on the ground of local prejudice rendering impossible an impartial trial is a matter addressed to the sound discretion of the trial court and its ruling on this question will not be reversed on appeal unless the record clearly shows abuse of that discretion. The law presumes that a defendant can get a fair and impartial trial in the county in which the offense was committed. Hence, in order to overcome this presumption the burden is upon the one requesting a change of venue to show clearly that there is such a widespread feeling of prejudice on the part of the citizens of the county as will be reasonably certain to prevent a fair and impartial trial. Hampton v. Commonwealth, 190 Va. 531, 58 S.E. (2d) 288, and authorities there cited.

In support of his motion the defendant filed an affidavit of Fred B. Harkrader, a resident of Christiansburg and employer of defendant, in which Harkrader charged that on June 13, 1954, two deputy sheriffs of Giles county warned him not to give the defendant any assistance in the case and stated to him that they wanted to see defendant 'burn.' He also complained that he was denied the right to visit the prisoner. These charges were repeated in his testimony before the jury. In addition members of defendant's family, including his wife, father, brother, and sisters testified that they were not allowed to see the defendant while he was in jail.

The editions of April 14th and 21st, 1954, of the Giles County Virginian, the local newspaper, were introduced in evidence and reference was made to brief news articles appearing on page one, and also to an editorial in the earlier issue.

From the evidence submitted on the motion it appears that after his arrest on Saturday, April 10, 1954, and confinement in the Pearisburg jail, defendant was removed that night to the Pulaski jail where he remained until the 15th when he was returned to Pearisburg. On Monday the 12th of April members of defendant's family selected Mr. Reuben Lawson, an attorney of Roanoke, to represent the defendant and notified the Commonwealth's Attorney of Giles county who promptly communicated with this attorney. However, the defendant's wife preferred other counsel and on April 17th employed defendant's present counsel who consulted with him at once.

Defendant did not by this evidence clearly show that there was such a widespread feeling of prejudice against him in Giles county as to make it reasonably certain that he could not obtain a fair and impartial trial. The news articles printed in the local newspaper are purely factual and contain nothing calculated to excite prejudice or inflame the citizens. The editorial nowhere mentions the name of the defendant and merely approves the collection of a fund for the family of an officer killed while on duty and who was not covered by any insurance. There was no evidence to support the charge that the fund was raised for the prosecution of the defendant.

There is no merit in the claim that defendant was denied the opportunity to communicate with his family and counsel in the preparation of his defense. An attorney was selected by defendant's family two days after his arrest and when that attorney did not meet with the wife's approval she within a week employed the attorney who represented him at the preliminary hearing on April 20, 1954, ten days after his arrest, at the trial on June 21, 1954, and on this appeal. It is true that the Pearisburg jailer did not permit unrestricted visitations, but that was primarily because rules and regulations were in force at the jail that restricted everyone to visits on certain days and at specified times. However, defendant was afforded every opportunity to consult with his attorney freely and at such times as counsel desired. It is therefore clearly apparent that the restrictions on visiting complained of did not deprive defendant of any rights in the preparation or presentation of his defense.

Most of the testimony relied on by defendant in support of his motion for a change of venue was later developed in the trial of the case presumably in support of counsel's contention that the police officers of Giles county and certain state troopers were biased and prejudiced against him. The evidence on this point in general and specifically as to whether two deputy sheriffs of Giles county threatened defendant's employer is conflicting; but even if defendant's evidence be accepted as true, the alleged bias of the officers is not alone sufficient to show such a widespread feeling of prejudice among the citizens of the county as to make it reasonably certain that defendant could not obtain a fair and impartial trial.

We turn now to the issue of whether the evidence is sufficient to support the verdict. We are asked to reverse the judgment primarily on the ground that under the evidence the trial court 'should have held as a matter of law, that the homicide was justifiable or excusable; accidental killing in self-defense or in defense of habitation.'

While our decision on this issue of the sufficiency of the evidence requires a clear understanding of the evidence viewed in the light of the verdict, counsel for both parties have failed to include in the printed record all of the evidence material to this question. Consequently, it has been necessary for us to read the original transcript of the voluminous testimony of over forty witnesses to determine what are the pertinent and controlling facts.

It is the duty of the appellant or his counsel to present an intelligible record to this court, especially where the sufficiency of the evidence is involved. Lewis v. Commonwealth, 193 Va. 612, 615, 70 S.E. (2d) 293; Rule 5:1, § 6(f). Yet we find that both the printed record and defendant's brief contain practically none of the germane evidence we are asked to hold insufficient to support the verdict. Indeed the printed record contains only the evidence introduced on behalf of the defendant. This failure to comply with the rules governing appeals on so vital an issue is an invitation to dismiss the writ of error. Furthermore, the defendant's brief fails to contain a 'clear and concise statement of the facts;' in the entire brief there are no 'references to the pages of the printed record' and although the 'facts are in dispute' the brief fails to so state. Rule 5:12, § 1(c). Moreover, the brief of defendant does not clearly state in one place 'the questions involved in the appeal.' Rule 5:12, § 1(b). See Southwest Virginia Hospitals v. Lipps, 193 Va. 191, 68 S.E. (2d) 82; Bonich v. Waite, 194 Va. 374, 73 S.E. (2d) 389.

The record shows that on the afternoon of Saturday, April 10, 1954, the defendant, accompanied by his brother, James Farrow, and his father-in-law, Sam Redmond, drove from his home in Christiansburg to the home of his father and brother near Hoge's Chapel in Giles county, where they arrived at about 4:00 p.m. They found several persons in the house, including defendant's father, James Farrow's wife, and several others, one of whom was Warren Williams, a white man who lived about three quarters of a mile from the Farrow home.

Williams testified that while he was visiting the Farrows the defendant gave him a drink of whiskey, that he told the defendant that Deputy Sheriff Broadwell might come there looking for one Clarence Smith, and that the defendant replied, 'He'd better not come here without a search warrant.' ' Before going to the Farrow home Williams had told Deputy Sheriffs Broadwell and Smith that he thought Clarence Smith was there.

Deputy Sheriff Broadwell had in his possession a warrant for the arrest of Clarence Smith. Twice during the afternoon of April 10,...

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  • Lienau v. Commonwealth
    • United States
    • Court of Appeals of Virginia
    • 11 d2 Setembro d2 2018
    ...while the defendant was in the act of defending or preparing to defend himself against an unprovoked assault." Farrow v. Commonwealth, 197 Va. 353, 363, 89 S.E.2d 312, 318 (1955). In arguing that any error has been rendered harmless by the verdict, the Commonwealth correctly states that ord......
  • Coppola v. Com.
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    ...of prejudice on the part of the citizenry as will be reasonably certain to prevent a fair and impartial trial. Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955). A court may refuse to summon a jury from another county until an ineffectual effort has been made to obtain an ......
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    • U.S. District Court — Eastern District of Virginia
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    ...on the part of the citizens of the county as will be reasonably certain to prevent a fair and impartial trial." Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955). The State trial judge "`There was no evidence introduced of mass prejudice against the defendant, of mob action, or thre......
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    ...There were no demonstrations of any kind against the defendant -- either inside or outside the courtroom. 'In Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955), Mr. Justice Smith 'The law presumes that a defendant can get a fair and impartial trial in the county in which t......
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