Burford v. Commonwealth
| Decision Date | 08 June 1942 |
| Docket Number | Record No. 2540. |
| Parties | GEORGE W. BURFORD v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.
1. AUTREFOIS, ACQUIT AND CONVICT — Plea — Appeal and Error — Appellate Court Precluded unless Formal Written Plea Presented in Lower Court — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure and kill, accused contended that the trial court erred in not quashing the indictment since accused had been tried before a trial justice on the same identical charge and acquitted, and therefore, by putting accused on trial, he was in double jeopardy. None of these facts appeared to have been included in a formal written plea presented in the lower court.
Held: That the circumstances precluded the appellate court from reviewing the alleged error.
2. AUTREFOIS, ACQUIT AND CONVICT — Plea — Must Be in Writing. — A plea which raises the issue of former jeopardy must be in writing.
3. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Competent Jurisdiction of Trial Court — Trial before Justice for Felony — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure, disable and kill, accused contended that the trial court erred in not quashing the indictment since accused had been tried before a trial justice on the same identical charge and acquitted. Accused contended that his acquittal on a warrant charging assault and battery constituted a bar, if properly pleaded, to prosecution on an indictment charging accused with the commission of a felony in which the same assault and battery were necessary elements.
Held: That since the assault and battery was felonious, a justice of the peace had no jurisdiction of the case, and any judgment which may have been rendered by him was null and void and was no bar to the prosecution for the felony.
4. AUTREFOIS, ACQUIT AND CONVICT — Identity of Offenses — Misdemeanors Committed in the Perpetration of Felonies. — Where the prisoner has been convicted of a misdemeanor, and is afterwards indicted for a felony, the two offenses are considered so essentially distinct that a conviction of one is deemed no legal bar to an indictment of the other.
5. JUSTICES OF THE PEACE — Jurisdiction of Trial Justices — Code Sections 4845 and 4846 — No Jurisdiction of Felonies. — The statute abolishing the authority of justices of the peace to try misdemeanors and clothing trial justices with such authority, do not expressly or by implication clothe 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 sections 4845 and 4846 of the Code of 1936, which statutes have not been changed since 1877, except for a slight amendment adopted in 1895-6.
6. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Competent Jurisdiction Essential. — 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.
7. WITNESSES — Excluding Witnesses from Court Room — Civil Cases — Court Has Authority in Absence of Statute. — In civil cases the trial court has power, in the exercise of sound discretion, to exclude or to sequestrate witnesses without statutory authority.
8. WITNESSES — Excluding Witnesses from Court Room — Permitting Prosecuting Witness to Remain — Discretion of Court. — 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 during the trial.
9. WITNESSES — Excluding Witnesses from Court Room — Trial Court's Ruling Not Reversed unless Record Discloses Abuse of Discretion. — As both the common law and statute give the trial court discretion in the matter of excluding witnesses from the courtroom during a trial, the Supreme Court of Appeals will not reverse the trial court's ruling unless the record discloses an abuse of that discretion.
10. WITNESSES — Excluding Witness from Court Room — Exemption of Prosecuting Witness from Exclusion Order Not Prejudicial — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure, disable and kill, accused assigned as error the action of the trial court in excepting the prosecuting witness from an order excluding witnesses from the courtroom during the trial. It appeared by inference that the Commonwealth's attorney desired the prosecuting witness to remain in the courtroom for suggestions and assistance in the introduction of testimony, and he was called immediately after the first witness, a surgeon, who testified as to the extent of the injuries inflicted.
Held: That the exemption of the prosecuting witness from the exclusion order was not prejudicial to accused.
11. WITNESSES — Cross Examination — To Test Knowledge of Witness — Whether Witness Knew Accused Was on Parole — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure, disable and kill, the attorney for the Commonwealth, in cross-examining a witness who testified as to the reputation of accused for truth and veracity, asked the witness if he did not know that at a certain time accused was on parole from the Federal Board. Before the witness answered the question an objection was interposed and, in the absence of the jury, the attorney for accused moved for a mistrial on the ground that the question was improper. The witness did not answer the question and it was not repeated when the proceedings before the jury were resumed. The motion for a mistrial was overruled.
Held: No error.
12. WITNESSES — Impeachment — Character of Witness — Proof of Other Crimes. — The character of a witness for veracity cannot be impeached by proof of a prior conviction of crime, unless the crime be one which involved the character of the witness for veracity.
13. WITNESSES — Impeachment — Collateral Facts Irrelevant to Issue. — A witness cannot be impeached by proof of collateral facts irrelevant to the issue, though they may have a bearing on the question of veracity.
14. WITNESSES — Impeachment — Character of Witness — Showing Conviction in Federal Court — Must Have Involved Moral Turpitude — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure, disable and kill, the following motion was submitted: "On behalf of the Commonwealth we move the privilege of proving that the accused has been convicted once in the State court of a felony, the said conviction being in the Corporation Court of Lynchburg, Virginia, upon a felonious charge of having a second time violated the former prohibition law of this State; and also that he has been convicted of a felony in the United States Court for the Western District of Virginia upon the charge of removing and concealing untaxed liquor." Objection to this motion was duly interposed and overruled and accused assigned error on the ground that the conviction of a crime in a Federal court, which is a felony under the Federal statutes but which is declared to be a misdemeanor by the Virginia statutes, is not admissible in evidence under section 4779 of the Code of 1936, which makes the fact of conviction of a felony admissible to affect credit.
Held: That the assignment of error was well taken. It did not appear that the charge upon which accused was convicted in the Federal court involved moral turpitude, or the character of the witness for veracity.
15. JUSTICES OF THE PEACE — Police Justices — Appeal — Effect on Judgment of Justice. — The effect of an appeal from a police justice's decision is not only to deprive him of further jurisdiction but to annul his judgment of conviction.
16. MAYHEM — Admissibility of Evidence — Trial Justice's Judgment from Which an Appeal Was Taken — Case at Bar. — In the instant case, a prosecution for unlawful wounding with intent to maim, disfigure, disable and kill, the trial court refused to admit in evidence a trial justice's judgment of conviction of the prosecuting witness for his part in the difficulty upon which the prosecution of accused in the instant case was based, and accused assigned this as error. At the time of the prosecution of the instant case, an appeal from the justice's judgment was still pending in the circuit court.
Held: There was no merit in the assignment of error.
17. WITNESSES — Impeachment — Character of Witness — Conviction of Assault and Battery Not Relevant. — Assault and battery is not a crime involving moral turpitude and hence a conviction therefor is not relevant for purposes of impeachment.
18. WITNESSES — Impeachment — Answers to Collateral Questions Are Conclusive. — If a question as to collateral fact be put to a witness for the purpose of discrediting his testimony, his answer must be taken as conclusive, and no evidence can be afterwards admitted to contradict it.
19. MAYHEM — Admissibility of Evidence — Specific Acts of Violence by Prosecuting Witness upon Third Persons. — Evidence that a prosecuting witness, in a prosecution for unlawful wounding with intent to main, disfigure, disable and kill, had committed specific acts of violence and had been convicted of assault and battery previously made upon third parties is admissible to show such conduct as would naturally excite apprehension, whether it objectively indicates a fixed trait of character or not.
20. MAYHEM — Admissibility of Evidence — Specific Acts of Violence by Prosecuting Witness upon Third Persons. — Evidence that a prosecuting witness, in a prosecution for unlawful wounding with intent to main, disfigure, disable and kill, had committed specific acts of violence and had been...
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