Cremeans v. Commonwealth.*

• Decision Date: 14 December 1905
• Citation: 52 S.E. 362,104 Va. 860
• Court: Virginia Supreme Court
• Parties: CREMEANS. v. COMMONWEALTH.*

52 S.E. 362

104 Va. 860

CREMEANS.

v.COMMONWEALTH.^*

Supreme Court of Appeals of Virginia.

Dec. 14, 1905.

1. Criminal Law — Rigiit of Accused to Confront Witnesses — Constitutional Provision.

Under Const. Va. art. 1, § 8, p. ccx, securing to one accused of crime the right to call for evidence in his favor, it is error to force the accused into trial in the absence of his witnesses, on the theory that they will be summoned and examined if they arrive before verdict, and. if not, that their testimony may be made the basis of a motion for a new trial.

2. Same—Harmless Error.

Where, in a prosecution for murder, it appeared, both by the return on the process and the uncontroverted testimony of the deputy sheriff of one county and of the sheriff of another county, that no such persons as certain witnesses, the absence of whom was the sole ground relied of by defendant in his motion for a continuance, lived in either county or could be found there, the error in overruling the motion, the court stating that it would award process for the witnesses and permit them to testify, provided they arrived before the trial was concluded, and that otherwise their evidence would be taken and considered on a motion to set aside the verdict, was not cause for reversal.

3. Same.

The rule that though the ruling of the trial court may have been erroneous on some proposition submitted to it, yet if from the whole record it appears that the party complaining was not and could not be prejudicially affected by such ruling, it affords no ground for reversal, is of general application, except whena mandatory requirement of the law is involved, in which case the principle of strictissimi juris obtains.

Cardwell, J., dissenting.

Error to Circuit Court. Giles County. Morris Cremeans was convicted of murder, and brings error. Affirmed.

Jno. W. Williams and A. H. Woodyard, for plaintiff in error.

WHITTLE, J. This writ of error is to a judgment of conviction of the plaintiff in error, Morris Cremeans, of murder in the first degree.

It appears that on the night of April 24, 1905, Cremeans shot George Kid, while the latter was in bed at his home in Giles county, inflicting upon him a mortal wound of which he died a few days thereafter. Cremeans was pursued by the officers of the law, arrested the day following the shooting in Bluefield, W. Va., and brought back into Virginia without a requisition. Having waived a preliminary examination, be was lodged in jail to await indictment and trial.

On May 8, 1905, he was indicted by a special grand jury summoned for that purpose; and, being without counsel, the court assigned two members of the bar to defend him. Thereupon the prisoner moved the court to continue the case until the first day of the next term, on the ground of the absence of material witnesses, and testified in support of his motion that four men were eyewitnesses to the homicide, two of whom were unknown to him, but that the other two, whom he named, were residents of Buchanan county. In further support of the motion, counsel for the prisoner represented to the court that, though they had not had the opportunity of talking with those witnesses, they believed from information derived from the accused that their evidence was not only material, but indispensable, to his defense.

The motion was resisted by the attorney for the commonwealth, who introduced the widow and daughter of the deceased, both of whom testified that they were in the room when the fatal shot was fired, "and that the door of the house was closed, and that there were no such witnesses on the outside as claimed by the defendant, or, if there were, they did not know it." Whereupon the court overruled the motion for a continuance, and also the motion of the prisoner to set the case for trial at a later day of the term, and he was forthwith put upon trial. The court in that connection observed that it would award process for the witnesses and permit them to testify, provided they arrived before the trial was concluded; otherwise, their evidence would be taken and considered upon a motion to set aside the verdict

This ruling of the court was made the ground of exception, and constitutes the as signment of error relied on here to reverse the judgment.

There is no rule of practice better settled in this state than "that a motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case, and that, although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. Where the circumstances satisfy the court that the real purpose in moving for a continuance is to delay or evade a trial, and not to prepare for it, then, though the witnesses have been summoned and the party has sworn to their materiality and that he cannot safely go to trial without them, the continuance should be refused." This doctrine is laid down in Hewitt's Case, 17 Grat. 627, and the principal case has been followed and cited as authority for the proposition enunciated in numerous decisions of this court. The cases on the subject will be found collected in a note to 17 Grat. (Va. Rep. Anno.) 441.

While we approve the wisdom of the above-mentioned rule, and are in entire sympathy with its object, which is to prevent unnecessary delay and promote the prompt and effective administration of the criminal law, still the wide discretion vested in trial courts in that respect must be exercised with due regard to the provisions of the Bill of Rights, which secure to one accused of crime a fair and impartial trial, and to that end safeguard his right "to call for evidence in his favor." Const. Va. art. 1, § 8, p. ccx.

In deference to that fundamental requirement, we cannot sanction a practice which, in "a capital or criminal prosecution, " forces the accused into trial In the absence of his witnesses, upon the theory that they will be summoned and examined if they should arrive before verdict, and, if not, that their testimony may be made the basis of a motion for a new trial. Such practice, we conceive, violates both the letter and spirit of the Constitution. In a case of the gravity of the one in question, involving the life of a citizen, we are of opinion that, under the circumstances narrated touching the motion for a continuance, the circuit court ought to have postponed the trial for a reasonable time to afford the prisoner opportunity to prepare for his defense. And we have no hesitation in saying that but for subsequent developments in the case, which in our opinion justify the conclusion that there were no such witnesses in existence as those relied on by the prisoner, we should feel constrained to reverse the judgment and award the prisoner a new trial.

It appears, however, both by the return upon the process and the testimony of the deputy sheriff of Buchanan county and the sheriff of Dickenson county, that no such persons lived in either county, or could be. found there; and as the sole ground assigned for delay was the absence of these allegedwitnesses, the prisoner could not have been prejudiced by the ruling of the court in the particulars mentioned. Therefore such ruling does not constitute reversible error; for it is the settled rule of this court that though the ruling of the trial court may have been erroneous upon some proposition submitted to it, yet if it is apparent from the whole record that the party complaining was not and could not have been prejudicially affected by such ruling, it affords no ground for reversing the judgment. Colvin v. Menefee, 11 Grat. (Va. Rep. Anno.) 87, and note; Kincheloe v. Trace-wells, 11 Grat. 587; Farmers', etc., Ass'n. v. Kinsey, 101 Va. 236, 244, 43 S. E. 338.

While it is true that the authorities cited were civil cases, the principle announced is of general application, except when the court is dealing with a mandatory requirement of the law, in which case the principle of strictissimi juris obtains. The testimony of the deputy sheriff of Buchanan county and the sheriff of Dickenson county was not controverted, and it would be a vain thing for this court to reverse the judgment and remand the case for a new trial on account of the absence of imaginary witnesses.

On the merits, the record presents a case of unwonted atrocity. The prisoner, who had invaded the home of the deceased in the nighttime for an immoral purpose and made indecent proposals to his married daughter, and was ordered off, for that cause alone shot his defenseless victim, while in his bed with his wife and in the presence of his family.

The other assignments of error were not pressed, and, being without merit, do not demand further notice.

It only remains to say that the judgment must be affirmed.

KEITH, P. (concurring in judgment). The law...