Compton v. Commonwealth

• Decision Date: 20 September 1934
• Citation: 163 Va. 999
• Parties: GARLAND COMPTON AND REUBEN COMPTON v. THE COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 999

163 Va. 999

GARLAND COMPTON AND REUBEN COMPTON v. THE COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Staunton.

September 20, 1934.

Present, All the Justices.

1. HOMICIDE — Evidence — Reason for Presence of Accused at Scene of Crime — Case at Bar. — In the instant case, a prosecution for murder, it was the theory of the Commonwealth that defendants, after driving a truck into a field for the purpose of stealing cattle, shot and killed one of the two companions of the owner of the cattle who had followed the truck when they heard it go into the field. The ruling of the trial court in permitting the Commonwealth to prove that cattle were kept in the field in question and in adjoining fields was assigned as error.

Held: That there was no merit in this contention. Without this evidence proof of the Commonwealth's theory would have been incomplete, for no other reason was suggested for the presence of the truck and its occupants in the pasture.

2. APPEAL AND ERROR — Objection Not Raised in Trial Court. — The Supreme Court of Appeals cannot, unless the error is apparent, consider an objection which the record does not show was urged in the trial court.

3. JURY — Impartiality of Jurors — Expression of Opinion of Juror Prior to Trial — Refusal to Set Aside Verdict — Case at Bar. — In the instant case, a prosecution for murder, a motion to set aside the verdict was based on the ground, among others, that two of the jurors, prior to the trial, had formed and expressed opinions as to the guilt of the prisoners. There were two reasons, either of which justified the trial court in overruling the motion on this ground. One was that the record did not shiow what effort, if any, was made to ascertain the qualifications of the jurors before they were accepted. The other was that evidence offered to sustain the allegation was not convincing, and the jurors denied that they had made any such statements, and were corroborated by other witnesses.

4. NEW TRIALS — Motion to Set Aside Verdict for Something Occurring before Verdict — What Accused Must Allege and Prove. — On a motion to set aside a verdict for the existence of something which occurred before verdict, the accused must allege and prove that the existence of the ground relied upon was not only unknown to him until after verdict, but that he, by the exercise of due diligence, could not have ascertained it before verdict.

5. JURY — Impartiality of Jurors — Discretion of Trial Court. — A motion for a new trial after the verdict, on the ground of the disqualification of a juror, is addressed to the sound discretion of the trial judge, and where there is a conflict of testimony as to the language and conduct of the juror on which exception is founded, it is his duty to weigh and decide upon the credibility of the opposing statements of the witnesses and juror, and to determine whether in justice to the accused, and upon all the circumstances of the case, a new trial ought to be awarded.

6. JURY — Impartiality of Jurors — Expression of Opinion of Juror before Trial — Case at Bar. — In the instant case, a prosecution for murder, a motion for a new trial, based on the ground, among others, that two of the jurors, prior to the trial, had formed and expressed opinions as to the guilt of the prisoners, was overruled.

Held: That there was no error in the ruling of the trial court.

7. NEW TRIALS — Motion to Set Aside Verdict for Irregularity Occurring before Verdict — Party Keeping Silent with Knowledge of Irregularity. — The general rule is that in neither a civil nor a criminal case will a party be allowed to sit mute, in the presence of the court, with knowledge of an irregularity and wait until the return of an adverse verdict, then rely upon such irregularity to vacate it.

8. HOMICIDE — New Trial — Setting Aside Verdict because of Employment of Private Prosecutor by Sheriff and Clerk — Case at Bar. — In the instant case, a prosecution for murder, a motion to set aside the verdict, based on the ground, among others, that the county clerk and the sheriff had employed an attorney to aid in the prosecution, was overruled by the trial court. The clerk was present when the jury was drawn and the sheriff served the summons and the jury was in his care for three days and three nights during the trial. The Commonwealth made no effort to remove the suspicion created by the fact that these officers were so interested in securing a conviction that they employed a private prosecutor.

Held: That the judgment of the trial court should be reversed. Prejudice is presumed, when an accused charged with an offense for which the death penalty may be invoked, proves that the officer to whom the jury has been committed for the purpose of guarding them against outside influence was so interested in the result that he employed a private prosecutor to obtain a conviction. In such a case the accused should not be required to prove the intent or motive of such officer.

Error to a judgment of the Circuit Court of Scott county.

The opinion states the case.

Mack Coleman and S. H. Bond, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.

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

This writ of error is to review the proceedings of a trial in which Garland and Reuben Compton were convicted of murder in the first degree and sentenced to twenty years confinement in the penitentiary.

The theory of the Commonwealth, supported by its evidence, was that the defendants, at night, went in a truck equipped for hauling stock into a pasture owned by one Bays Nickels, for the purpose of stealing cattle. Bays Nickels, Harry Delias and Elbert Collectt heard the truck going in the direction of the pasture, pass Nickels' home, and immediately followed. When they arrived on the scene, the truck had been driven into the field; its rear backed up against a bank, its floor level with the top of the bank, and the rear gate down. Nickels asked what was going on, no one replied, but four or more men "scattered" and began shooting. During the melee Elbert Collett was shot and later died from the wound.

The first error assigned is to the ruling of the court in permitting the Commonwealth to prove that cattle were kept in this and adjoining fields. Without this evidence proof of the Commonwealth's theory would have been incomplete. No other reason is suggested for the presence of the truck and its occupants in Nickels' pasture. There is no merit in this contention.

The prisoners objected to Instruction IX, which told the jury that if they believed that either Garland Compton, Reuben Compton, Bascomb Compton or Vernon Elliott shot and killed Collett, and the other three were present, aiding, abetting, etc., then all were guilty.

The ground of objection urged in this court is that the evidence does not show that Vernon Elliott was present at the time of the shooting. While defendants made a general objection to all instructions given for the Commonwealth, no specific objection was urged to any instruction. We can not, unless the error is apparent, consider an objection which the record does not show was urged in the trial court. As a matter of fact the evidnce introduced by defendants tends to show that Vernon Elliott was present when the crime was committed.

The motion to set aside the verdict was based on three grounds: (1) The verdict was without evidence to support it; (2) two of the jurors, prior to the trial, had formed and expressed opinions as to the guilt of the prisoners; (3) J. M. Craft, clerk, and ...