Benson v. Com., 3656

• Docket Nº: No. 3656
• Citation: 190 Va. 744, 58 S.E.2d 312
• Case Date: March 13, 1950
• Court: Supreme Court of Virginia

Page 312

58 S.E.2d 312

190 Va. 744

CARVEL BENSON v. COMMONWEALTH OF VIRGINIA.

Record No. 3656.

Supreme Court of Appeals of Virginia

March 13, 1950.

Ashburn, Agelasto & Sellers, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Special Assistant, for the Commonwealth.

JUDGE: STAPLES

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

Carvel Benson, the plaintiff in error (defendant below and hereinafter so-called), was tried in the Corporation Court of the City of Norfolk upon an indictment charging him with bribery, in violation of section 4496 of the Code of Virginia. Pursuant to a jury verdict of guilty he was sentenced to confinement for a term of three years in the State penitentiary.

The evidence of the Commonwealth tended to show that the defendant was engaged in the operation of what is generally known as a 'numbers racket,' and that he paid protection money to twenty-three officers of the Norfolk police force to avoid the arrest of his men engaged in that enterprise. The defendant himself did not take the witness stand but introduced other witnesses to refute the evidence of the prosecution.

The first assignment of error challenges the validity of the indictment because it was found by a special grand jury panel selected from a list furnished by the judge of the corporation court in accordance with section 4854 of the Code. It is contended that its personnel was chosen from a selected class of citizens which did not represent a fair cross section of the community, and that such procedure was a denial of due process of law and equal protection of the laws under the Fourteenth Amendment.

It appears that the grand jury in this case was not selected solely for the purpose of considering the charges against the defendant, but that, at the time the defendant's indictment was returned, forty or fifty other indictments were found by the same grand jury.

It has long been the practice in Virginia to empanel special grand juries so chosen to investigate unlawful conditions which have become prevalent in a community, and this action has been uniformly sustained by the decisions of this court. Shinn v. Commonwealth, 32 Gratt. (73 Va.) 899; Hausenfluck v. Commonwealth, 85 Va. 702, 8 S.E. 683.

While section 4866 of the Code prevents the trial of a person on a felony charge except upon a presentment of indictment found by a grand jury, this is purely a statutory requirement and is not predicated upon any constitutional guarantee. Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652.

The defendant relies principally upon Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.ed. 1181, 166 A.L.R. 1412, which reversed the decision of a United States District Court in a civil action for damages for personal injuries on the ground that the District Court had followed a practice of systematic and intentional exclusion from juries of persons who worked for a daily wage. It was held that such method of selection of juries constituted a failure to abide by the proper rules and principles of jury selection, and that the exclusion of those who worked for a daily wage was not justified either by the Federal or State laws applicable. The opinion of the court emphasizes, however, that its reversal of the judgment was not based upon the denial of any constitutional guarantee but 'in the exercise of our power of supervision over the administration of justice in the Federal courts.'

In the later case of Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.ed. 2043, the Supreme Court refused to disturb a judgment of conviction of the defendants in a New York State court which was challenged upon substantially the same ground as that on which a reversal was based in the Thiel Case. In the opinion by Mr. Justice Jackson, the distinction is clearly drawn between an attack upon the validity of a State court trial and one in a lower Federal court. In a State court, unless the exclusion from the jury is in violation of the act of Congress of March 1, 1875, prohibiting disqualification for jury service on account of race, color, or previous condition of servitude, the opinion concludes that, since no constitutional rights are violated by the selection of jurors who are not representative of the various groups of citizens in the community, the Supreme Court is not justified in setting aside a judgment entered on the verdict of a jury so constituted.

We find no merit in this assignment.

In the second assignment of error the defendant contends that he has been deprived of due process of law in violation of the Fourteenth Amendment, and also in violation of section 8 of the Virginia Bill of Rights, by the refusal of the police justice for the city of Norfolk to conduct a preliminary hearing after he had been arrested on a warrant returnable to that court. It appears that, when the defendant insisted on having a preliminary hearing before witnesses were allowed to appear before the grand jury, the attorney for the Commonwealth dismissed the warrant. The defendant insists that the purpose of such dismissal was to deprive him of the preliminary hearing and hence of his constitutional rights.

In Jones v. Commonwealth, 86 Va. 661, 10 S.E. 1005, it was held that an accused who has been indicted in a court of record may be tried on the indictment without any preliminary hearing. We know of no reason why the Commonwealth could not lawfully dismiss the warrant against the accused. The Commonwealth's attorney had complete authority over the conduct of the prosecution and was at liberty to dismiss the warrant if he thought it would expedite the proceedings. We hold that, under these circumstances, the defendant had no right, either statutory or constitutional, to be afforded a preliminary hearing prior to the finding of the indictment or to his trial thereon.

The defendant also contends that it was error to admit in evidence the testimony of C. V. Allen, a former police officer, of a telephone conversation, the effect of which was that there had been an admission by the defendant to the witness that he had a list of police officers to whom he was paying protection money through a man he had taking care of the payoff down at police headquarters. The objection to the testimony is that there was not sufficient evidence to establish the identity of the defendant as the person with whom the witness was talking on the telephone. The witness, Allen, testified that he had heard of the list in question and was told by another officer that he thought Allen's name was on the list; that Allen then obtained from some person, whose name he...