Butts v. Commonwealth

• Decision Date: 17 June 1926
• Parties: BUTTS v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 800

145 Va. 800

BUTTS v. COMMONWEALTH.

Supreme Court of Virginia, Wytheville.

June 17, 1926.

1. CRIMINAL LAW — Speedy Trial — Immediate Trial — Negligence of the Prosecution. — Section 8 of the Constitution of 1902 guarantees to every one accused of crime a speedy trial. This provision must have a reasonable interpretation. A speedy trial does not entitle the accused to an immediate trial. The State is entitled to a reasonable opportunity to fairly prosecute its charge against the accused. All that can be asked is that the trial shall take place as soon as practical after the indictment is found and the State had a reasonable opportunity to prepare for trial. Any time after this, arising from negligence or laches on the part of the prosecution, without fault or participation on the part of the accused and without his consent, is a violation of the constitutional provision.

2. CRIMINAL LAW — Speedy Trial — Constitutional Provision not Self Operative. — Section 8 of the Constitution of 1902 guaranteeing a speedy trial is not self operative. It may be claimed, or it may be waived.

3. CRIMINAL LAW — Speedy Trial — Three Terms of the Circuit Court of Four of the Corporation Court — Section 4926 of the Code of 1919. — Section 4926 of the Code of 1919 provides that every person held in any court for trial under indictment shall be discharged from prosecution if there be three regular terms of the circuit court or four of the corporation or hustings court in which the case is pending after he is so held without trial. This legislative interpretation of what constitutes a speedy trial, as guaranteed by section 8 of the Constitution of 1902, has been often approved by the Supreme Court of Appeals.

4. CRIMINAL LAW — Speedy Trial — Three Terms of the Circuit Court or Four of the Corporation Court — Section 4926 of the Code of 1919. — Under section 4926 of the Code of 1919, the term at which the indictment is found is excluded from the calculation, and after this the Commonwealth has three regular terms of the circuit court, at any one of which the accused may be tried without offering any excuse for delay; but after the expiration of these three terms, unless the Commonwealth shall bring herself within the exceptions mentioned in section 4926 the statute provides that the accused shall be forever discharged from prosecution for the offense. The accused, however, must avail himself of the provision made for his benefit.

5. CRIMINAL LAW — Speedy Trial — Section 4926 of the Code of 1919 — Whether there must be a Complete Trial with Final Judgment. — Under section 4926 of the Code of 1919 providing that accused shall be discharged after three regular terms of the circuit court or four of the corporation or hustings court without a trial, the trial need not be a complete trial in which final judgment must be entered not later than during the third term; and, where the accused is actually brought to trial within the time required by the statute, but from some adventitious cause, without fault on the part of the Commonwealth, or where a further delay for a reasonable time is necessary to consider some motion or application of the accused, so that final judgment cannot be entered during such term, the statute has been sufficiently complied with.

6. CRIMINAL LAW — Speedy Trial — Delaying Judgment for Thirty-Three Months — Case at Bar. — In the instant case the delay between the rendition of the verdict and the final judgment was thirty-three months and the record disclosed no reason for the delay. If the statute had provided that a trial might have been deferred for that length of time it would have violated the constitutional provision for a speedy trial; and the withholding of judgment by the trial court for that length of time, without reason, or excuse therefor, was equally a violation of the constitutional right of the accused; and, if he had claimed his right, it should have been accorded him.

7. CRIMINAL LAW — Speedy Trial — Delaying Judgment for Thirty-Three Months — Waiver by Accused — Case at Bar. — In the instant case there was a delay of thirty-three months between the verdict and final judgment. The defendant could have moved the trial court for a discharge from further prosecution for the offense or he could have applied to the Supreme Court of Appeals for a mandamus to compel the trial court at an earlier date to proceed to judgment, or he might have applied for a writ of habeas corpus, but he did neither; and it was too late for him to assert his right to a discharge from prosecution for the first time in the Supreme Court of Appeals on a record involving the merits of the case.

8. CRIMINAL LAW — Speedy Trial — Waiver — Application for Discharge under Section 4926 of the Code of 1919 Distinct from the Case on its Merits. — The application for the discharge under section 4926 of the Code of 1919 providing for a discharge of one held for crime after three regular terms of the circuit court or four terms of the corporation or hustings court, is wholly distinct from, and independent of, the case on its merits, and the failure to invoke the operation of the constitutional provision is a waiver of the protection afforded thereby.

9. CRIMINAL LAW — Waiver of Constitutional Rights — Speedy Trial — Consent to a Continuance — Section 4926 of the Code of 1919. — A prisoner may waive many of his constitutional rights. There are rights which the prisoner can waive neither by counsel nor in person, and there are other rights which the prisoner can waive either in person or by counsel. They are the mere incidents connected with the trial, and these include consent to a continuance which would prevent the operation of section 4926 of the Code of 1919.

10. CONSTITUTIONAL LAW — Speedy Trial — Waiver of Right. — The right of the accused to a discharge for the failure of the prosecution to put him on trial within the required time may be waived by his own conduct. If he does not make a demand for a trial or if he does not make some kind of an effort to secure a speedy trial, he will not be in a position to demand a discharge because of delay in the prosecution.

11. ROBBERY — Definition — Common Law. — The Virginia statute as to robbery does not define robbery, so under section 2 of the Code of 1919 we have to look to the common law for the definition of robbery.

12. ROBBERY — Definition. — Robbery is an aggravated form of larcency, but is treated as a distinctive crime. It is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.

13. ROBBERY — Elements. — To constitute robbery in addition to force or threats, there must also be the elements of larcency.

14. ROBBERY — Intent — Property of the Taker. — There can be no larceny of the property taken if it, in fact, is the property of the taker, or if he, in good faith, believed it is his, for there is lacking the criminal intent which is an essential element of larceny. It is immaterial whether the taker is to benefit thereby or not.

15. LARCENY — Animus Furandi. — To constitute larceny, the taking and carrying away of the property of another must be done with criminal intent, and this is the animus furandi referred to in the decided cases.

16. LARCENY — Robbery — Destruction of Property — Property of Another — Destroyer Believing Property to be His Own. — If A, with criminal intent, takes the pistol of B, and breaks it to pieces, so that it is worthless, A is guilty of the larcency of B's pistol. If, however, the pistol is the property of A, or if A, in good faith, believes it belongs to him, although the taking is by trespass, yet he is not guilty of larceny by destroying it, because there was no criminal intent on A's part to deprive B permanently of a pistol that belonged to him, but to destroy what A, in good faith, believed to be his own property. The rule is not difficult of application to specific tangible personal property. If A has title to it, or honestly believes he has, the taking by force is neither larceny nor robbery.

17. LARCENY — Robbery — Collecting Debt at the Point of a Postol. — One collecting an admitted debt by use of threats accompanied by the presentation of fire-arms against the debtor, is guilty of an aggravated assault but not of robbery, where there is no dishonest or criminal intent.

18. ROBBERY — Collecting Admitted Debt by Threats and Presentation of a Pistol — Case at Bar. — In the instant case defendant was discharged by his walking boss, he demanded immediate payment for the amount due him, but was told that Saturday was pay day and that he would have to return Saturday to get his money. To this he objected and left the premises peacefully, but put a pistol into his pocket and returned to the plant in quest of the superintendent. He told the facts of his discharge to the superintendent and requested payment. There was no question over the amount due, $5.00. Upon the refusal of payment until Saturday, the accused became profane and pointed the pistol at the superintendent and demanded that he be paid his wages then and there. The accused and the superintendent then went into the latter's office to ascertain the accused's time, the accused still holding the pistol. The defendant's time card was then produced and the sperintendent took $5.00 of his own money and handed it to accused.

Held: That accused, while guilty of aggravated assault, was not guilty of robbery.

19. LARCENY — Robbery — Animus Furandi — Bona Fide Claim of Right. — There can be no animus furandi, or criminal intent, where the property is taken under a bona fide claim of right.

20. ROBBERY — Bone Fide Claim — Questions of Law and Fact. — Usually in prosecutions of larceny and robbery, the question of whether the property was taken under a bona fide claim of right is one for the jury. But where, as in the instant case, the facts are undisputed, and only one...