Clark v. Com., s. 5259
| Decision Date | 12 June 1961 |
| Docket Number | Nos. 5259,5260,s. 5259 |
| Citation | 202 Va. 787,120 S.E.2d 270 |
| Court | Virginia Supreme Court |
| Parties | TOM WILLIE CLARK v. COMMONWEALTH OF VIRGINIA. TOM WILLIE CLARK v. COMMONWEALTH OF VIRGINIA. Record |
W. R. Broaddus, Jr. (Broaddus, Epperly & Broaddus, on brief), for plaintiff in error, Tom Willie Clark.
Frank V. Emmerson, Jr., Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
JUDGE: I'ANSON
The defendant, Tom Willie Clark, was found guilty under two indictments charging him with the unlawful sale of alcoholic beverages in violation of § 4-58, Code of 1950, as amended, and alleging that he had been previously convicted of a number of violations of the Alcoholic Beverage Control Act, pursuant to Code § 4-91. The two cases were heard together by a jury, and his punishment in each case was fixed at confinement in jail for three months and a fine of $200. Nunc pro tunc orders, to which there were no objections, were entered, wherein the defendant was sentenced in each case in accordance with the verdicts of the jury. We granted a writ of error and supersedeas in each case.
The defendant assigned as error the refusal of the court (1) to permit him to impeach the credibility of the testimony of the principal witness for the Commonwealth by evidence relating to his alleged illegal and immoral conduct; (2) to instruct the jury on the law applicable to entrapment; and (3) to instruct the jury to disregard certain testimony of the Commonwealth's principal witness and to declare a mistrial.
The second assignment of error was abandoned at the bar of this Court and will not be discussed.
The evidence shows that Harold D. Wright, the principal witness for the Commonwealth, was employed by the city of Martinsville during the months of February and March, 1960, and the State Alcoholic Beverage Control Board for the month of April, 1960, as an undercover agent for the purpose of causing the arrest and conviction of persons engaged in the unlawful sale of alcoholic beverages. On March 31, 1960, and April 9, 1960, Wright made purchases of alcoholic beverages from the defendant at his place of business in Martinsville and his testimony relating to the two sales was corroborated by Jimmy Pearce, who accompanied him on each occasion.
The defendant denied the sale to Wright on March 31, 1960. He admitted, however, that Wright came to his place of business on April 9, 1960, to get some whiskey and because he 'acted so nice' he decided to let him have it, but stated that before he handed the bottle of whiskey to him, Wright grabbed it and ran out of the place of business without paying for it.
The defendant does not question the sufficiency of the evidence to support the convictions.
The defendant's first assignment of error is directed to the refusal of the court to permit him to cross-examine the witness Wright for the purpose of attacking his credibility as a witness and to lay the foundation for his impeachment by introducing evidence relative to (1) his arrest on the charge of operating an automobile while under the influence of whiskey on February 19, 1960; (2) buying a pint of whiskey for a 17-year-old girl; (3) registering at a motel with an unknown woman; and (4) his treatment for a venereal disease shortly after his arrival in Martinsville.
The trial court, for the purpose of the record, permitted counsel, out of the presence of the jury, to cross-examine Wright and to introduce testimony touching on the alleged illegal acts and misconduct.
The rule is well settled in Virginia that a witness cannot be asked on cross-examination questions as to collateral independent facts irrelevant to the issue being tried, though bearing on the question of veracity, for the purpose of testing his credibility and with the view of laying the foundation to contradict him afterwards by calling other witnesses. Allen v. Commonwealth, 122 Va. 834, 841, 94 S.E 783, 785; 20 Mich. Jur., Witnesses, § 65, p. 521.
One of the recognized methods of impeaching a witness, in this State as well as elsewhere, is to show his bad general reputation for truth and veracity in the community where he lives or works, or among his neighbors and acquaintances, by witnesses who know that reputation. Bradley v. Commonwealth, 196 Va. 1126, 1133, 86 S.E.2d 828, 832; 58 Am. Jur., Witnesses, § 725, p. 391; 20 Mich. Jur., Witnesses, § 64, pp. 519, 520.
The testimony of an impeaching witness must be confined to the general reputation of the witness for truth and veracity and he is not permitted to testify as to the specific acts of untruthfulness or other bad conduct, though they may have a bearing on veracity. Bradley v. Commonwealth, supra; ...
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