Bell v. Commonwealth

Decision Date14 January 1937
Citation189 S.E. 441
PartiesBELL. v. COMMONWEALTH.
CourtVirginia Supreme Court

Error to Circuit Court, Nansemond County.

Norfleet Bell was convicted of second degree murder, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Crumpler & Crumpler, of Suffolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin H. Gibson, Asst. Atty. Gen., for the Commonwealth.

HOLT, Justice.

On the night of October 1, 1933, in a suburb of the city of Suffolk, Norfleet Bell shot and wounded Henry Harris, who died therefrom in a short time. Harris, his brother Webster Harris, Joe Jacobs, and Joe Williams were engaged in a crap game. During its progress Bell came up, and Harris, who in fact had left his watch at home, charged Bell with stealing it and ran Bell from the game. Bell soon afterwards returned and was again chasedaway. The game then broke up, and Harris and his brother went to their home, where his mother told him that she had his watch; then, with his brother Webster and another brother Charlie, they went to a nearby store to buy cigarettes. On their way back and when near an oak tree by which Bell stood, Bell called Harris to him and shot him. The jury found the accused guilty of second-degree murder and ascertained and fixed his punishment at twenty years' confinement in the penitentiary. This verdict the court confirmed.

Joe Jacobs, a witness for the defendants, on cross-examination was asked if he had been in the penitentiary. He said that he had been there once and had been on the road once; that he had twice been convicted of a felony. Joe Williams, another witness, on cross-examination said that he had been sent to jail for stealing fish, while Jesse Boddy said that he had been convicted of stealing chickens. Due objection to the admissibility of all this evidence was made and overruled. This is the basis of the prisoner's first assignment of error.

It is not contended that the evidence is insufficient to support a verdict of guilty and so a more detailed statement is not now necessary.

"Crime" has been defined as an offense which the law punishes directly, and is classified as treason, felonies, and misdemeanors. "Treason" is but an aggravated felony, and so for practical purposes crimes are either felonies or misdemeanors.

A "felony" is "an offense which occasions the total forfeiture of either land or goods at common law to which capital or other punishment may be superadded according to the degree of guilt." "Petit larceny" was ranked among felonies, but under it lands were not liable to escheat. In a trial for felony the jury was required to make a true deliverance between the crown and the prisoner at bar. In one for a misdemeanor, they were sworn to try the issue between the crown and the defendant. Forfeiture for felonies was abolished by 33 and 34 Vict. c. 23, and many offenses which were felonies at common law have been made misdemeanors by statute. Enc. Brit. vol. 6, p. 520.

In Russell on Crimes, vol. 1, chapter 4, is this definition of "misdemeanor" "The word misdemeanor is applied to all those crimes and offences for which the law has not provided a particular name."

When Hastings stood before the House of Lords, charged with high crimes and misdemeanors, certainly that tribunal did not for seven years mill over inconsiderable offenses.

It is plain that no comprehensive and permanent definition of these crimes is possible without the aid of a statute.

Crimes may again be divided into those which are inherently immoral or injurious and into those which are not thus tainted but which rest in some statute which forbids their commission.

At common law those convicted could not testify.

"At common law, persons convicted in courts of record of crimes which render them infamous are excluded from being witnesses. 'Infamous' crime in this sense is regarded as comprehending treason, felony, and crimen falsi. In most jurisdictions, however, the disqualification of infamy is removed by statute, though a conviction may be proved to affect credibility." Wharton's Criminal Evidence, vol. 1, p. 30.

"Of such person Chief Baron Gilbert remarks that the credit of his oath is overbalanced by the stain of his iniquity."

"It was formerly thought, that an infamous punishment, for whatever crime, rendered the person incompetent as a witness, by reason of infamy. But this notion is exploded; and it is now settled that it is the crime and not the punishment that renders the man infamous." Id.

Lord Chief Justice Holt in R. v. Warden of the Fleet, 12 Mod. 337, 341, said: "In respect to a person who had been burnt in the hand, if it were for manslaughter, and afterwards pardoned, it were no objection to his credit; for it was an accident which did not denote an ill habit of mind; but 'secus' if it were for stealing, for that would* be a great objection to his credit, even after pardon, "

Now, however, by statute in Virginia, Code, § 4758, the grade of the offense is fixed by the punishment. Those offenses punishable by death or confinement in the penitentiary are felonies and other offenses are misdemeanors, but no statute could affect their inherent nature, and so-larceny, either grand or petit, isshot through with moral turpitude, and this outstanding characteristic is not changed whether the thief steals forty-nine or fifty-one dollars. Indeed by statute now, Code, § 4785, one three times convicted of petit larceny must be sentenced to the penitentiary. Of course repetition of an offense does not change its nature.

At common law simple larceny of goods above the value of twelve pence is called grand larceny; of that value or under it is petit larceny. Both were felonies. Bouvier's Law Dictionary, "Felony"; People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 88 N.E. 38; 36 C. J., p. 800.

If it be conceded that petit larceny at common law was a misdemeanor, we reach the same results. "An 'infamous' crime is one which works infamy in the person who commits it. At common law it was one which involved moral turpitude and which rendered the party convicted thereof incompetent as a witness." 16 C.J., p. 60.

At common law, there was no distinction between grand and petit larceny except in the punishment, which was death in the one case and whipping in the other--by statute extended to transportation for seven years. 4 George I, c. 11; 4th Blackstone, pp. 229, 238. One convicted of either offense was an incompetent witness and this continued to be the law until 31st George III, chapter 35, which made misdemeanant convicts competent. Barbour v. Commonwealth, 80 Va. 287.

The crime was then no longer technically speaking "infamous" but was still base. Incompetent witnesses, of course, could not be impeached, but it did not follow that a witness who was competent was unimpeachable.

In an act of the General Assembly, passed January 10, 1818, Code of 1819, vol. 1, 'p. 517, it is provided:

"That no person convicted of treason, murder or other felony whatsoever, shall be admitted as a witness in any case whatsoever, unless he be first pardoned, or shall have received such punishment, as by law ought to be inflicted upon such conviction.

"No person convicted of perjury, although he be pardoned or punished for the same, shall be capable of being a witness in any case."

By statute of 1847-48, c. 120, subc. 11, p. 124, § 31, it is provided that a person convicted of felony shall not be a witness unless he has been pardoned or punished therefor.

Again by statute of 1877-78, c. 311, subc. 10, § 19, the Legislature dealt with this subject and said: "Except where it is otherwise expressly provided, a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor, and a person convicted of perjury shall not be a witness, although pardoned or punished."

This continued to be the law until the Code of 1919 was adopted. It declared, section 4779, that "conviction of felony or perjury shall not render the convict incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit."

Crimes in Virginia, now classified as felonies and misdemeanors, Code, § 4758, have always been so distinguished. Barker v. Commonwealth, 2 Va.Cas. 122. Some misdemeanants, however, were sent to the penitentiary for so inconsiderable an offense as exhibiting an A.B.C. table. Code 1819, vol. 1, p. 567.

By statute in Virginia, Code, § 4440, one who steals goods to the value of $50 or more is guilty of grand larceny, and if it be from the person $5 or more. Of course, these standards are wholly arbitrary. The Legislature might change them and it might entirely abolish such distinctions.

Until the Code of 1919 went into effect, there was no statutory provision which dealt with the status of a witness who had been convicted of a felony other than perjury and who had suffered the punishment assessed against him. So far as Virginia statutes are concerned, he stood as other witnesses stand.

In Samuels' Case (Samuels v. Com.) (1909) 110 Va. 901, 66 S.E. 222, 19 Ann. Cas. 380, section 522 of Wigmore on Evidence is cited with approval. It is there said that a conviction and sentence for a felony in one of the United States does not render the party incompetent as a witness in the courts of another state, although that fact might be shown in diminution of the credit due his testimony. To the same effect is Greenleaf on Evidence, § 376.. Impeachment in this manner was then warranted by the law of evidence although there was no statute on the subject, but the admission of such testimony was within the sound discretion of the trial court and should have been measured by the character of the crime.

If conviction in another state may be shown in diminution of credit, then afortiori evidence of conviction at home is competent, and this has been expressly decided in Virginia.

In Davidson v. Watts, 111 Va. 394, 395, 69 S.E. 328, 330,...

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