Cobb v. Commonwealth

• Citation: 152 Va. 941
• Parties: HARRY S. COBB v. COMMONWEALTH.
• Decision Date: 17 January 1929
• Court: Supreme Court of Virginia

Page 941

152 Va. 941

HARRY S. COBB v. COMMONWEALTH.

Supreme Court of Virginia, Wytheville.

January 17, 1929.

Absent, Chichester, J.

1. EXCEPTIONS, BILL OF — Time of Signing — Section 6252 of the Code of 1919 — Where there was a Motion to Set Aside the Judgment. — In the instant case the question at issue was whether the sixty days within which bills of exceptions are to be signed under section 6252 of the Code of 1919, as amended, began to run on April 27, 1928, the date upon which the judge first gave judgment, or from June 4, 1928, the date on which a motion of May 5, 1928, to set the judgment aside was finally passed upon and on which it was confirmed.

Held: That the sixty day period began on June 4, when the motion to set aside the judgment was finally passed on.

2. EXCEPTIONS, BILL OF — Time of Signing by Judge — Motion for New Trial — Rehearing, or in Arrest of Judgment Interposed. — Where there is interposed a motion for a new trial, rehearing, or in arrest of judgment and new trial, the time for settling and filing the bill is to be computed from the date when the motion is finally disposed of.

3. JURY — Right of Trial by Jury — Waiver — Criminal Cases. — Under the recent amendment to section 8 of the Constitution of 1902 (Acts 1928, page 254) all criminal cases may be submitted to the court, to be heard by the court, without the intervention of a jury.

4. JURY — Right of Trial by Jury — Waiver — Misdemeanor Cases. — Under Bill of Rights, section 8, of the Constitution of 1902, the court in misdemeanor cases might, with the consent of the accused given in person, and of the attorney for the Commonwealth, both entered of record, give final judgment without the intervention of a jury.

5. JURY — Right of Trial by Jury — Misdemeanor Cases — Form of Waiver not Jurisdictional. — Under section 8 of the Constitution of 1902, which provided that accused might wave his rights to a trial by jury in a misdemeanor case, there is no provision of law as to the manner in which this may be done beyond that the section stated that it must be done in person. The form of waiver was not jurisdictional.

6. JURY — Right of Trial by Jury — Waiver of Right — Failure to Make Demand. — Where in a criminal case the accused may waive a trial by jury, such waiver may be by a failure on the part of accused to demand a jury.

7. CRIMINAL LAW — Waiver — Matters not Relating to the Jurisdiction. — The accused may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.

8. CRIMINAL LAW — Waiver — Accused Standing By and Suffering Irregular Proceedings. — A prisioner on trial under our laws has no right to stand by and suffer irregular proceedings to take place and then ask to have the proceedings reversed on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglects in proper time to insist upon his rights, he waives them.

9. JURY — Right of Trial by Jury — Waiver — Consent of Accused in Person to Trial by Court — Case at Bar. — In the instant case plaintiff in error was found guilty of the unlawful possession of ardent spirits. Plaintiff in error attacked the judgment of conviction on the ground that he had not consented in person to be tried by the court without the intervention of a jury. It appeared that accused knew that he had a right to a jury trial and desired to exercise that right. This he stated, not to the court, but to his counsel, and after conference, and after being advised that it was to his best interest to waive a jury, acquiesced in that method of procedure, and no protest was made until after the case had been decided against him.

Held: That the judgment of conviction would not be set aside.

10. APPEAL AND ERROR — Conflict between Recitals in Orders of Court and Bills of Exceptions — Case at Bar. — In the instant case an order of court recited that on the joint motion of the accused with the consent of the attorney for the Commonwealth, the whole matter of law and fact was determined by the court. It was argued that the order of court imported verity, and showed that the constitutional requirements were met as to a trial without jury and could not be questioned on appeal. But bills of exception are also a part of the record, made so by statute (Code of 1919, section 6252), and prevail over recitations in the orders whenever there is any conflict as to facts. However, there was no real conflict in the instant case between the bill of exceptions and the order, for the accused, after conference with counsel, and upon reflection, acquiesced in all that was done and in all that the order states was done.

11. APPEAL AND ERROR — Findings of Court — Findings have Weight of Verdict Approved by Trial Court. — Where a case is tried by the court without the intervention of a jury, the judgment of the court carries with it not only the force of a verdict, but the force of a verdict approved by the trial court.

12. APPEAL AND ERROR — Findings of Court — Weight of Findings — Reasonable Doubt — Case at Bar. — In the instant case stress was laid upon the fact that the guilt of accused must be established beyond a reasonable doubt. But when a jury has found from the evidence that a defendant is guilty, and that verdict is approved by the trial judge, it is not for the Supreme Court of Appeals to say that the evidence does or does not establish his guilt beyond a reasonable doubt, because as an original proposition it might have reached a different conclusion. This rule obtains with equal force when the entire case is submitted to a judge.

13. INTOXICATING LIQUORS — Unlawful Possession — Evidence Held to Sustain a Conviction of Unlawful Possession. — In the instant case accused was convicted of the unlawful possession of ardent spirits. The ardent spirits were found in a house owned by accused. Accused testified that this house had been rented to men whom he did not know. The evidence was that he took the tenants to his rental agent. Accused testified that he had no control over the premises, but the evidence showed that he had a key to the front door. Accused could not satisfactorily explain what he was doing at the back door of the house on the occasion of his visit to it on the day before his arrest. Tools used with Chevrolet automobiles were found on the premises and accused had such a car. After trips of accused to the house the concealed door leading to the whiskey was disturbed. Accused's reputation as an habitual violator of the liquor law was bad.

Held: That it could not be said that a judgment of conviction was without evidence to support it.

Error to a judgment of the Corporation Court of the city of Norfolk.

The opinion states the case.

N. T. Green, for the plaintiff in error.

John R. Saunders, Attorney-General, Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

On December 5, 1927, the Norfolk police, in response to certain information, raided a residence in that city, located on the southwest corner of Evergreen avenue and Glendale avenue. On its second floor they found no household furniture, but a steam boiler, water tank, some wash tubs and empty barrels. They also found hidden there under a concealed trap door one hundred and twenty gallons of whiskey in wooden or glass containers. There was some furniture on the first floor, but no other articles of daily use. That is to say, there was nothing to indicate that this house was at that time used as a residence. In the kitchen of the first floor was a box of new Chevrolet automobile tools. Nothing was disturbed, but a policeman was left in charge and to keep watch. On the following morning, the defendant, in company with one Lane, his nephew, drove up in a new Chevrolet automobile. They parked this car and Cobb gave Lane a latch key to the front door. By its aid Lane entered and was immediately placed under arrest. Within a short time knocking was heard at the back door. This the officer in charge, who then held Lane in custody, opened, found Cobb there and placed him also under arrest. On that day Cobb and Lane were arraigned before the police justice of the city who dismissed the charge against them, but their case was then immediately presented to a grand jury, and on the following day a joint indictment was returned, which set out the omnibus count, charged the unlawful possession of ardent spirits and the possession of instrumentalities capable of being used in its manufacture.

The officers removed from the premises the personalty found there, except the whiskey. This they left, placed on the trap door certain little inconspicuous articles, and continued to keep the house under surveillance. While it was thus watched Cobb visited it on several occasions, always in company with one or more people, save once when he went by himself. After each of these visits the house was inspected, and in each instance it was found that the articles placed on the trap door had been moved, although none of the whiskey was disturbed. Some time before the raid, Cobb had placed this house in the hands of Hoggard & Co., rental agents, and they had leased both floors to tenants brought by Cobb, the upper one to C. C. Cox and the lower to R. F. Almond, and on these leases rent had been regularly paid. Cobb's reputation as an habitual violator of the liquor law was bad.

Cobb testified on his own behalf. He said that he was the owner of these premises, but did not live there and exercised no control. He also denied that he knew Cox, the lessee of the upper story, and testified that he knew nothing about the articles of personalty found, with the exception of a little furniture on the first floor, put there before the apartment was rented. He further said that on December 4, he was called over the `phone by a stranger and...