Burford v. Commonwealth

• Decision Date: 08 June 1942
• Citation: 20 S.E.2d 509,179 Va. 752
• Court: Virginia Supreme Court
• Parties: BURFORD. v. COMMONWEALTH.

20 S.E.2d 509

179 Va. 752

BURFORD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 8, 1942.

Error to Circuit Court, Bedford County; A. H. Hopkins, Judge.

George W. Burford was convicted of unlawfully wounding a named person with intent to maim, disfigure, disable and kill, and he brings error.

Reversed and remanded for a new trial.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Edmunds, Whitehead, Baldwin & Graves, of Lynchburg, and Whitehead & Marshall, of Lovingston, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Car-rington Thompson, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

This is a writ of error to a judgment entered on the verdict of a jury convicting George W. Burford of a felony in unlawfully wounding with intent to maim, disfigure, disable and kill Theron W. Thompson. The petition filed in this court assigned ten errors alleged to have been committed by the lower court in the trial.

The concession made by counsel for the accused in the oral argument, to the effect that the evidence for the Commonwealth was sufficient to sustain the verdict, relieves this court of the necessity of discussing the assignments of error numbered one and two.

The third assignment of error seems to be based on a motion made by the attorney for the accused after the jury was impanelled and sworn. The motion and exception are found in the order refusing to set aside the verdict, reading as follows: "That the court erred in not quashing or dismissing the indictment and charge against the defendant, as the defendant had, on January 7, 1941, been tried before the trial justice of Bedford county, Virginia, on the same identical charge and was acquitted, and therefore by putting the defendant on trial, he was put in double jeopardy."

The Attorney General, in his brief, very pertinently states: "We have been unable to find the warrant containing the charge against Burford before the trial justice, or any record of what disposition was made of this warrant. None of the facts appears to have been included in a formal written plea presented in the lower.court. These circumstances preclude the appellate court from reviewing this alleged error,

This court, through Judge Campbell, now Chief Justice, after a review of the former cases on the question, said: "We are, therefore, of the opinion that a plea which raises the issue of former jeopardy must be in writing." J. H. DeBoer v. Commonwealth, 147 Va. 671, 675, 137 S.E. 469, 470.

However, counsel earnestly contend that the acquittal of the accused on a warrant charging assault and battery constitutes a bar, if properly pleaded, to prosecution on an indictment returned by a grand jury charging the accused with the commission of a felony in which the same assault and battery were necessary elements.

It was thought that this question had been finally determined in the case of Murphy v. Commonwealth, 23 Grat. 960, 64 Va. 960, 963, where this is said: "And as the assault and battery charged in the indictment in this case, and of which the accused was convicted by the verdict and judgment, was felonious, therefore a justice of the peace had no jurisdiction of the case; and any judgment which may have been rendered by a justice as alleged in said plea is null and void, and was no bar to the prosecution for the felony.

"But even if the accused had been indicted and convicted of a mere assault and battery, in the County court having jurisdiction of such an offence generally, the conviction would not have been a bar to an indictment for a felony in the perpetration of which the assault and battery was committed. The misdemeanor in suchcase is considered as merged in the felony. 'Where the prisoner has been convicted of a misdemeanor, and is afterwards indicted for a felony, the two offences have been considered so essentially distinct, that a conviction of one was deemed no legal bar to an indictment of the other.'"

Section 8 of the Constitution provides: "He [any person] shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers; * * *." Section 106 provides: "Indictments shall conclude 'against the peace and dignity of the Commonwealth.'" These provisions of the present Constitution are the same that were in force in 1868 when this court decided the case of Matthews v. Commonwealth, 18 Grat. 989, 59 Va. 989. The question presented was whether or not, under the act of April 27, 1867, a person could be put upon his trial on a charge of having committed a felony in the absence of a presentment or indictment returned by a grand jury. Speaking to the point at page 997 of 18 Grat., this is said: "There is in the constitution of Virginia no such express provision. The only express reference which it makes to the subject of indictments, is in a provision which was engrafted on the original constitution, and has been literally copied into every amended constitution since; and which declares that 'indictments shall conclude against the peace and dignity of the commonwealth.' Constitution of 1851, art. 6, sec. 24, Code p. '54. There are some provisions in the Bill of Rights which had their origin in Magna Charta, which had been supposed to embrace, among other things, a declaration that no citizen shall be put upon trial for felony unless upon an indictment found by a grand jury. This is certainly the rule of the common law, which authorizes the Attorney General to exhibit an ex-officio information for any misdemeanor whatever, but not for felony; it being required in all cases of felony that the accusation should be warranted by the oath of twelve men before the defendant can be put to answer it."

The court, after stating the applicable common law rule, construed the statute to be in accord therewith and expressly declined to pass on the power of the legislature to enact a statute which would put a person upon his trial for a felony in the absence of an indictment returned by a grand jury.

It is well to note that since the decision in the Murphy case, supra, another provision has been added to section 8 of the Constitution, reading: "Laws may be enacted providing for the trial of offenses not felonious by a justice of the peace or other inferior tribunal without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction." See Mickens v. Commonwealth, 178 Va. 273, 16 S.E.2d 641.

It is not necessary in this case to pass upon the constitutional question suggested, as the pertinent part of Code, section 4866, provides: " * * *; but no person shall be put upon trial for any felony, unless an indictment shall have first been found by a grand jury in a court of competent jurisdiction."

The statutes, abolishing the authority of the justices of the peace to try misdemeanors and clothing the trial justices with such authority, do not expressly or by implication clothe the trial justices with any authority to try persons charged with felonies. The authority of trial justices in criminal cases is the same as that formerly exercised by justices of the peace, and is found in Code, sections 4845 and 4846, which statutes have not been changed since 1877 except for a slight amendment adopted in 1895-6.

The trial justice of Bedford county had no jurisdiction to try the accused for the commission of a felony. As stated by the Attorney General, the trial justice, on his conclusion from the evidence, could have pronounced one of three judgments: (1) He might have dismissed the warrant entirely; (2) he might have bound the accused over to appear before the grand jury at the next term of the circuit court; or (3) he might have convicted the accused of a misdemeanor. If the crime is in fact a felony, no judgment of the trial justice constitutes a bar to further prosecution for the offense if a grand jury returns an indictment charging the accused with the commission of the felony.

"An acquittal or a conviction by a justice of the peace, a police magistrate, or other court not having jurisdiction of the offense is not former jeopardy, and is no bar to a subsequent trial in a court which has jurisdiction." 22 C.J.S., Criminal Law, § 244, p. 378. See Bailey's Case, 1 Va.Cas. 258, 3 Va. 258, 261; Dulin v. Lillard, 91 Va. 718, 722, 20 S.E. 821; Seay v. Commonwealth, 155 Va. 1087, 156 S.E. 574; Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257; Malouf v. City of Roanoke, 177 Va. 846, 13 S.E.2d 319.

The fourth assignment of error is to the action of the trial court in excepting Theron W. Thompson from the agreement or order excluding witnesses from the courtroom during the trial.

Code, section 4906, provides: "In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any or all persons whose presence is not deemed necessary."

In United Dentists v. Commonwealth, 162 Va. 347, 352, 173 S.E. 508, it was held that the trial court, in civil cases, had power, in the exercise of sound discretion, to exclude or to sequestrate witnesses without statutory authority.

While there were only three eyewitnesses to the beginning of the difficulty between the accused and Thompson, twenty-five witnesses were examined. The inference is that the Commonwealth's attorney desired the prosecuting witness to remain in the courtroom for suggestions and assistance in the introduction of testimony. Dr. Elisha Barksdale, the surgeon who treated Thompson, was the first witness called. His testimony, in the main, was confined to the extent of the injuries inflicted upon Thompson. Immediately thereafter Thompson was introduced as a witness. It is true that, in rebuttal, he was recalled to contradict the accused on a matter of minor importance.

The general rule is that the trial court, in the exercise of a sound discretion, may permit the prosecuting witness to remain in the courtroom...