Brown v. Com.

• Decision Date: 28 August 1974
• Citation: 215 Va. 143,207 S.E.2d 833
• Parties: William BROWN v. COMMONWEALTH of Virginia. William KIDD, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 833

207 S.E.2d 833

215 Va. 143

William BROWN v. COMMONWEALTH of Virginia.

William KIDD, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Aug. 28, 1974.

Charles F. Urquhart, III, Courtland, for plaintiff in error in 730733. Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendants in error in both cases.

E. Beale Carter, Jr., Boykins (Britt & Carter, Boykins, on brief), for plaintiff in error in 730786.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

SNEAD, Chief Justice.

William Brown and William Kidd, Jr., were convicted at separate trials by the Southampton Circuit Court, sitting without a jury, on felony indictments relating to acts committed while they were inmates at the Southampton Correctional Farm located in Southampton County.

On May 1, 1973, Brown, on a plea of not guilty, was found guilty of violating Code § 53--291(5). This section provides that it is unlawful for an 'inmate in a penal institution' to '(m)ake, procure, secrete or have in his possession a knife, instrument, tool or other thing not authorized by the superintendent which is capable of inflicting death or bodily injury . . ..' Brown was sentenced to serve eighteen months in the State penitentiary for the offense.

On May 30, Brown filed a motion to set aside the conviction on the ground that the court lacked jurisdiction to try the offense. He contended that under Code § 53--295, ¹ jurisdiction was only in the Circuit Court of the City of Richmond. The motion was overruled, and he has assigned error to the trial court's action in denying his motion.

On May 21, 1973, defendant Kidd, on pleas of not guilty, was tried on two indictments each charging malicious maiming under Code § 18.1--65 and on one indictment charging possession of an unauthorized weapon under § 53--291(5). Prior to trial, Kidd moved to quash the indictment charging him with possession of an unauthorized weapon, arguing that under § 53--295 the Southampton Circuit Court lacked jurisdiction. The motion was overruled. Kidd was found guilty and sentenced to serve ten years in the State penitentiary on each of the malicious maiming convictions and eighteen months on the conviction for possession of an unauthorized weapon. We granted writs of error to the three judgments of conviction.

The basic question both the Brown and Kidd cases present is whether § 53--295 was jurisdictional in nature, thereby requiring that prisoners incarcerated at the Southampton Correctional Farm be tried in the Circuit Court of the City of Richmond, or whether § 53--295 only prescribed the proper venue for the trial of these prisoners.

Jurisdiction may be generally defined as the power to hear and adjudicate a case on its merits. Shelton v. Sydnor, 126 Va. 625, 629, 102 S.E. 83, 85 (1920). The power cannot be conferred upon a court by the parties and where jurisdiction is lacking, action by a court is a nullity. Southern Sand and Gravel Co. v. Massaponax Sand and Gravel Corp, 145 Va. 317, 323--324, 133 S.E. 812, 813--814 (1926). In criminal cases, the circuit courts have original and general jurisdiction as provided by Code § 17--123. ²

In contrast, venue is the place fixed for a trial. Venue, as a matter of policy, is set for the convenience of the parties. Southern Sand and Gravel Co. v. Massaponax Sand and Gravel Corp., Supra.

In criminal cases, venue is generally set at the place where the crime was committed. Rule 3A:17 of Rules of Court; Howell v. Commonwealth, 187 Va. 34, 40--41, 46 S.E.2d 37, 40--41 (1948). This rule is subject to exception. For example, by statute, a change of venue may be granted in criminal cases for good cause shown. Code § 19.1--224. Proper venue may be waived by failure to raise the question before the verdict or a finding of guilty by the court. Rule 3A:17; Hicks v. Commonwealth, 157 Va. 939, 947, 161 S.E. 919, 921 (1932).

In the present cases, appellants argue that § 53--295 establishes jurisdiction, thereby limiting the general jurisdiction conferred upon circuit courts by § 17--123. In their view, only the Circuit Court of the City of Richmond had the power to try them for their offenses committed while incarcerated in the Southampton Correctional Farm. We do not agree.

No express or mandatory language in § 53--295 limits jurisdiction only to the Circuit Court of the City of Richmond. Furthermore, use of the word 'jurisdiction' in the summary title is not controlling. The summary title is not part of the body of the statute and, in the proper context, the word 'jurisdiction' may be used to mean venue. County School Board v. Snead, 198 Va. 100, 106--107, 92 S.E.2d 497, 503 (1956).

County School Board presented an analogous situation supporting the interpretation of § 53--295 as prescribing venue. There, the question before this Court was whether Code § 8--42 limited the jurisdiction of circuit courts in considering mandamus writs. Section 8--42 reads in part: 'Jurisdiction of writs of mandamus . . . shall be in the circuit court of the county . . . to which the writ relates.' This Court held that 'jurisdiction' as employed in § 8--42 means 'venue,' and that the Circuit Court of the City of Richmond had jurisdiction to try a writ of mandamus against the Tazewell County School Board under its potential power conferred by § 17--123. See also Southern Sand and Gravel Co. v. Massaponax Sand and Gravel Corp., Supra.

Appellants cite Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790 (1871) in support of their position that the Circuit Court of the City of Richmond had exclusive jurisdiction to try them for the offenses committed. This case is not controlling. It did not directly deal with the question here involved. Instead, it was concerned primarily with whether trial in Richmond for a crime committed in Bath County by a penitentiary inmate violated the constitutional requirement that an accused be afforded a trial by an impartial jury of his vicinage. While this Court decided that the trial in the Circuit Court of the City of Richmond did not violate this requirement, it did not find that the Circuit Court of the City of Richmond had exclusive jurisdiction to try the case.

We hold § 53--295 to be a venue statute, not limiting the general criminal jurisdiction conferred upon circuit courts by § 17--123.

Since defendant Brown did not make a timely objection to the venue of his trial, the question of venue has been waived. Rule 3A:17. The judgment of conviction will, therefore, be affirmed.

Defendant Kidd did not object to the venue for trial of the two charges of malicious maiming. These judgments of conviction will, therefore, be affirmed.

However, kidd did object to the venue for trial on the indictment charging him with possession of an unauthorized weapon under § 53--295.

The Commonwealth contends that despite Kidd's objection, Southampton County was the proper venue for trial under § 53--295, which provided in part: '(W)hen convicts are employed upon any work of public or private improvement in any county in the State the criminal proceedings against them may be in the circuit court of the county in which the convict is so employed.' The Commonwealth argues, in...