Dickerson, Etc. v. Commonwealth

• Decision Date: 22 March 1934
• Parties: LEWIS DICKERSON AND JOHN S. HAWKINS v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 787

162 Va. 787

LEWIS DICKERSON AND JOHN S. HAWKINS v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

March 22, 1934.

Present, Campbell, C.J., and Epes, Hudgins, Gregory and Browning, JJ.

1. APPEAL AND ERROR — Appeal from Conviction by Justice of the Peace or Trial Justice — Plea of Guilty as Waiver of Right to Appeal — Case at Bar. — The rule laid down in Cooper Town of Appalachia, 145 Va. 861, 134 S.E. 591, to the effect that a plea of guilty before a justice of the peace or a trial justice is a waiver by the accused of the right to appeal to the circuit court, should not be adhered to. Under the statutes of Virginia relating to appeals from convictions from a justice of the peace or a trial justice neither a plea of guilty nor a motion to suspend a jail sentence made by or on behalf of the accused after they had been sentenced should be held to appear as a waiver of, or a bar to, the right of the accused to appeal to the circuit court for a trial de novo with the right to withdraw the plea of guity by the accused.

2. APPEAL AND ERROR — Appeal from Judgment of Justice or Trial Justice — Trial de Novo. — Under Acts 1930, page 783, and Acts 1930, page 800, and sections 4989 and 4990 of the Code of 1930, upon an appeal from the judgment of a justice or trial justice the case is to be tried de novo as if it were being tried upon an information or indictment brought before the circuit court in the first instance; that is, the appeal is in effect a statutory grant of a new trial to the accused to be had before the circuit court.

3. APPEAL AND ERROR — Court of Original Jurisdiction — Error Should Appear of Record. — Where the right to an appeal is predicated upon the commission of errors by the court of original jurisdiction, that error should appear of record.

4. APPEAL AND ERROR — Appeal from Justice of the Peace or Trial Justice — Inquiry as to Whether a Justice or Trial Justice Has Committed Error or Not. — Considering the nature and procedure in justice's and trial justice's courts, it would be an undesirable practice to make appeals therefrom to the circuit court depend, in any case, upon the establishment by parol testimony that the justice had been guilty of judicial misconduct or has committed error.

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

The opinion states the case.

William B. Cocke and Thomas H. Howerton, for the plaintiffs in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

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

Lewis Dickerson and John S. Hawkins were arrested and tried before Hon. William D. Prince, trial justice of Sussex county, on a warrant charging that they "did on the 24th day of August, 1933, unlawfully have in possession a still capable of manufacturing ardent spirits." When arraigned before the trial justice on August 28, 1933, they both pleaded guilty. The trial justice heard the testimony of one of the witnesses who was present when the accused were discovered at the still; and upon their plea of guilty and the testimony of these witnesses found both of the accused guilty as charged, and sentenced each of them to serve sixty days in jail and to pay a fine of $50 and costs.

The accused were not represented by counsel at the trial. However, after sentence had been pronounced, but before the trial justice had left the court room, Mr. Thomas H. Howerton, an attorney, appeared in the court room advised the trial justice that he had just been employed by the father of one of the young men to defend them but had not had time to examine the facts of the case, and asked that the case be reopened. Mr. Howerton testifies that he at this time also asked the trial justice to permit him to withdraw the pleas of "guilty" and enter pleas of "not guilty" for both of the accused. The trial justice in his testimony does not make mention of this fact, but we do not understand him to deny it. The trial justice refused to reopen the case.

A little later, after the trial justice had adjourned court and left the court room, Mr. Howerton again spoke to him and asked that the accused be granted a new trial, and that they be permitted to withdraw their pleas of guilty and enter pleas of not guilty. This request was refused. Thereupon, Mr. Howerton asked the trial justice to suspend the execution of sentence until the 4th of September. This request was granted.

On September 4th the accused and their counsel appeared before the trial justice and asked him to suspend the jail sentences, presenting to him a number of letters and a petition signed by a number of people of the community asking that this be done. The trial justice refused to grant this request, stating that "the matter was now out of his hands and that the matter could come up de novo in the circuit court." An appeal to the circuit court was then allowed to the accused by the trial justice and they were recognized for their appearance before that court.

When the case was called in the circuit court the attorney for the Commonwealth moved the court to dismiss the appeal as having been improvidently awarded, first, because both the accused had pleaded guilty before the trial justice and had been convicted on their plea of guilty, and second, because before any motion for appeal was made they had moved the trial justice to suspend the jail sentence, which motion had been denied.

The circuit court being of the opinion, as it recited in its order, that the evidence introduced before it showed that "the pleas of guilty * * * were deliberately tendered by the defendants, and that their conviction as aforesaid was attended with no apparent injustice;" and relying upon the case of Cooper Town of Appalachia, 145 Va. 861, 134 S.E. 591, held that they had waived the right to an appeal by pleading guilty, and dismissed the appeal as having been improvidently awarded.

From the judgment of the circuit court the defendants in error have been granted a writ of error. They assign several errors, but the only one which has sufficient merit in it to require consideration is that the court erred in holding that the plea of guilty entered by the defendants on the trial before the trial justice operated as a waiver of, or bar to, their right to appeal to the circuit court.

On the motion to dismiss the court heard testimony as to the circumstances under which the pleas of guilty were entered before the trial justice, and also the testimony of the accused on one side and of the sheriff on the other bearing upon the question of their guilt or innocence of the offense charged.

The trial justice testified that he read the warrant to the accused, asked them "as to their pleas," but that he did not explain to them "the nature and effect of the plea of guilty," or "say anything to them as to the consequences of the plea of guilty."

He further testified that the accused said nothing "to the effect that they did not know the meaning of the language used in the warrant."

The accused were young men of twenty-five and twenty-eight years of age, respectively, both have been to school and have a fair primary education; and when the warrant was read to them by the circuit court each stated that at that time he understood what the language meant. But each of them testified that at the time he was tried before the trial justice he did not understand "the words and phrases" contained in the warrant which was read to them or that by his plea of guilty he was pleading guilty to having possession of the still; and that he meant by his plea of guilty only that he was at or near the still when the officers raided it.

The accused testified that they did not own the still, were not in possession of it, and had never had anything to do with it. The account given by both of the accused as to how they happened to be at the still is this: On August 23d there had been a heavy storm, and on the morning of the 24th the father of Lewis Dickerson asked the two accused to go around his pasture fence and repair it. As they were going around the fence, they saw this still in the woods close to the fence, and out of curiosity stopped to look it over. While they were there looking it over the sheriff raided the still and Dickerson, becoming frightened, ran off, but stopped and returned when the officers hailed him.

The sheriff's account of what took place at the time of the raid is this: He had received information that this still was where it was found, and went to look for it. When he found it, it was not in operation, but there was a little fire under it and a quantity of cider and some brandy near the still. Dickerson and Hawkins were at the still when he got there. Hawkins had a funnel in his hand and appeared to be in the act of pouring something into the still. Just as he got to the still, Dickerson became aware of his approach and ran off, but stopped and returned when he hailed him. One of the officers stated to the defendant (which one he does not say), "You ought to be ashamed of yourself," and Hawkins replied, "Yes, I am ashamed to be caught here."

T. F. Bain, who was introduced by the accused, testified that a few days before the trial he saw the sheriff of the county who told him in the course of conversation that "he did not think that counsel would do them (the accused) any good since they were caught at the still, and that it was his opinion that, if they would plead guilty, it would be better or easier for them; and that he told both Dickerson and Hawkins what the sheriff had said, and they said they would plead guilty." The accused, Dickerson, adds that Bain saw the sheriff at his request, and told him what the sheriff had said.

The sheriff testified that he did not recall having told Bain that it would be better or easier for the accused if they plead guilty; but "that Mr. Bain mentioned something about a cow having been near the...