Bobo v. Commonwealth
| Decision Date | 14 June 1948 |
| Docket Number | Record No. 3388. |
| Court | Virginia Supreme Court |
| Parties | ERNEST BOBO v. COMMONWEALTH OF VIRGINIA. |
1. CRIMINAL LAW — Right of Accused — Right of Attorney of Accused to Interview Witness in Jail in Absence of Commonwealth's Attorney — Case at Bar. — In the instant case, a prosecution for homicide, the fatal shooting occurred in jail and counsel for accused prior to the trial applied to the court for permission to examine a material witness, subpoenaed by both the Commonwealth and accused, who was in the jail and had been there at the time of the shooting awaiting trial on the charge of another felony. The trial court granted the application but limited it by requiring that such examination be held in the presence of the attorney for the Commonwealth. This action of the court in failing to permit a private interview was assigned as error.
Held: Error. The attorney for accused had no right to be present when the attorney for the Commonwealth interviewed such a witness and likewise the attorney for the Commonwealth had no right to be present when the witness was interviewed by counsel for accused.
2. CRIMINAL LAW — Right of Accused to "Call for Evidence in His Favor" Includes Right to Interview Material Witness in Private. — The provisions of section 8, article 1, of the Virginia Constitution, which gives an accused the unqualified right to "call for evidence in his favor", includes the right to prepare for trial which, in turn, includes the right to interview material witnesses and to ascertain the truth. This fundamental right cannot be accorded the accused if he is hampered in his interview of his material witness by a prohibitory order of the court which refuses to grant him a private interview. The constitutional provision is not satisfied by a public interview.
3. CONSTITUTIONAL LAW — Mandatory Requirements — Principle of Strictissimi Juris Obtains. — When the court is dealing with mandatory requirements of the law the principle strictissimi juris obtains.
Error to a judgment of the Circuit Court of Caroline county. Hon. Leon M. Bazile, judge presiding.
The opinion states the case.
Joseph L. Savage, Jr., and Hill, Martin & Robinson, for the plaintiff in error.
Henry T. Wickham, Special Assistant to the Attorney General, for the Commonwealth.
The accused, Ernest Bobo, was tried by a jury, convicted of murder in the first degree, and his punishment fixed at death. The trial court approved the verdict and accordingly sentenced him to death.
Bobo had been arrested on March 12, 1947, by the sheriff and Mr. Lewis, his deputy, for vagrancy, and also on suspicion that he was a fugitive from South Carolina. He was placed in jail but not in a cell. Later on the same day the trial justice issued a warrant against him charging vagrancy. In the afternoon of March 12, Deputy Sheriff Lewis went into the jail with the janitor to allow the janitor to get some hot water for cleaning purposes. While Lewis was in the jail the accused grabbed his pistol which he was wearing in a holster. One James Dickerson, another prisoner in the jail, who was awaiting trial for bigamy and perjury and who was in a cell on the next floor above, testified that he heard Lewis say just before the shot, "Give me that gun", and that he heard the accused say, "Get back from that door; get the hell out and open that door, you son-of-a-bitch", and that a shot followed immediately.
Lewis was shot just below his eye, near his nose, and there were powder burns around the wound. This wound was the cause of his death which followed almost instantly.
The accused escaped with the pistol of Lewis, and was arrested later that afternoon after he had fired a number of shots at the officers who sought to arrest him. He was finally wounded by the sheriff of Hanover county. Later he was taken to the hospital at the State penitentiary for treatment and when he had recovered he was removed to the jail at Fredericksburg. He was unable to provide counsel, and the court appointed Joseph L. Savage, Jr., of the Fredericksburg bar, to represent him. The case was set for trial two months in advance in order to give counsel time to prepare.
Dickerson who, as previously stated, was confined in a cell on the upper floor of the jail, was within hearing and heard what occurred. The felony charges against him had not been disposed of before the trial of Bobo.
Counsel for the accused, prior to his trial, applied to the court for permission to examine Dickerson as to his knowledge of what occurred between Lewis and the accused at the time the former met his death. The court granted the application but limited it. The order of the court reads as follows:
Dickerson, who had been subpoenaed by both the Commonwealth and the accused, had been a paroled convict. The court felt that it was a proper precaution that at the time of the interview between counsel for the accused and Dickerson the attorney for the Commonwealth should be present. Counsel for the accused made strenuous objection to the presence of the Commonwealth's attorney and insisted that he wanted to confer with Dickerson privately but his objection was overruled.
When the attorney for the accused sought to examine Dickerson in the presence of the Commonwealth's attorney he refused to talk, saying that he had made a written statement and would not say anything further until sworn as a witness. The attorney for the Commonwealth did not interfere or participate in the conversation between Dickerson and counsel for the accused.
One M. C. Allen was selected as a juror. On the day of the murder of Lewis, Allen was called by the sheriff with a...
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