Fedele v. Com.

• Decision Date: 12 October 1964
• Parties: Jacquelin FEDELE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 256

138 S.E.2d 256

205 Va. 551

Jacquelin FEDELE v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 12, 1964.

Howard H. Carwile, Richmond, for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, I'ANSON and CARRICO, JJ.

I'ANSON, Justice.

The defendant, Jacquelin Fedele, was convicted in the Police Court of the City of Richmond on a warrant charging her with being a 'person of ill fame, to wit: a night prowler,' and on an appeal to the Hustings Court, after a hearing without a jury, the court found her guilty as charged in the warrant and required of her security in the sum of $300 for her good behavior for a period of twelve months, pursuant to § 19.1-20, Code of 1950, as amended, 1960 Repl. Vol. She is here on a writ of error to this judgment.

Defendant contends that the trial court erred in (1) holding that the evidence was sufficient to warrant its action; (2) denying her a jury trial; and (3) not holding that the language in the 'peace bond' statutes was so general and vague that they violate both state and federal constitutional guarantees of due process and equal protection of the laws.

The evidence shows that R. H. Carlisle, a police officer of the city of Richmond, while traveling north in a patrol car on Hermitage road on July 15, 1963, between the hours of 1:15 and 1:30 A.M., observed the brake lights of an automobile in an alley. The headlights on the car were not burning. The alley is in the rear of business property in the 1800 block of Broad street and the entrance to it is located just off Hermitage road, near its intersection with Meadow street. After traveling 20 to 30 yards beyond the alley, the officer turned the patrol car around and returned to the scene. The car was then backing out of the alley into Hermitage road. He followed the car for several blocks before stopping it at an intersection.

When the defendant, who was the driver of the car, was requested by the officer to show her operator's license she replied that she had left it home. Her explanation for the car being stopped in the alley was that she had missed her turn off Meadow street into Broad street and had turned into Hermitage road to get back to Broad; that she was headed in the wrong direction on Hermitage, a one-way street, and drove in the alley to turn around; that she was on her way to visit a friend who lived in the Laburnum avenue section of the city; and that she had lost her way.

When the defendant and her male companion were taken to police headquarters for further questioning it was ascertained that her driver's permit had been revoked, and that her statement as to her destination was misleading. It was also determined that her companion had a criminal record.

The defendant was a married woman with two children, but separated from her husband. She had lived in the city of Richmond for the past six years and was employed as a telephone operator. She did not have a criminal record, and no evidence was presented to show that she had a bad reputation.

Officer Carlisle was permitted to express an opinion that he did not think the defendant turned into the alley to commit an immoral act with her male companion, but that he believed their intention was to break and enter one of the nearby business establishments.

Before considering defendant's first assignment of error, we shall direct our attention to the Commonwealth's contention that this Court has no jurisdiction to entertain this appeal and that the proceeding should be dismissed.

The Commonwealth says that this proceeding is governed entirely by the language of Code § 19.1-20, as amended, which does not provide for an appeal from a conservator's judgment; that this Court derives its appellate jurisdiction in criminal cases from § 19.1-282, Code of 1950, as amended, 1960 Repl. Vol., and appeals not criminal from § 8-462, Code of 1950, 1957 Repl. Vol.; that the defendant was not charged with the commission of a crime and no punishment was imposed on her; and that all cases are classified as either criminal or civil but this proceeding is in neither category.

The power of conservators of the peace to require security from persons for their good behavior and to require a recognizance to keep the peace originated in the common law of England and was crystallized in two ancient English statutes. 12 Am.Jur.2d, Breach of Peace, Etc., § 41, pp. 692, 693; 11 C.J.S. Breach of the Peace § 17, p. 826; Davis, Criminal Law (1838), pp. 379, 384-386; 1 Edw. III, Stat. 2, ch. 16 (1327); 34 Edw. III, ch. 1 (1360).

The entire subject of requiring persons to give security for their good behavior and to keep the peace as a prevention of the commission of future crimes is regulated by statute in Virginia. Title 19.1, Criminal Procedure, Ch. 2, Prevention of Commission of Crimes, §§ 19.1-20 through 19.1-32.1, Code of 1950, as amended, 1960 Repl. Vol.

Code § 19.1-20 gives judicial officers and others power to require of persons 'not of good fame' security for their 'good behavior' for a term not exceeding one year.

Section 19.1-21 authorizes a conservator of the peace, upon complaint being made under oath and reduced to writing 'that there is good cause to fear that a person intends to commit an offense against the person or property of another * * * [to] issue a warrant, reciting the complaint, and requiring the person complained of * * * to be * * * brought before him or some other conservator.'

Section 19.1-22 deals with trial of an accused by the conservator, who may either discharge him or require of him a recognizance to keep the peace and to be of good behavior. If the accused does not give the required recognizance, the conservator 'shall commit him to jail by a warrant, stating the sum and time in and for which the recognizance is directed.'

Section 19.1-23 allows the accused to appeal from the conservator's judgment to the appropriate court of the city or county.

Section 19.1-24 confers on the court to which the appeal is taken the power to dismiss or affirm the conservator's judgment. The case is heard de novo on such appeal. Read v. Commonwealth, 24 Grat. (65 Va.) 618, 620; Rohanna v. Commonwealth, 168 Va. 696, 700, 190 S.E. 171, 173.

The Commonwealth first argues that a person found guilty of being 'not of good fame' and required to give security for good behavior under Code § 19.1-20, has no right of appeal from the judgment of a conservator, because there is no provision in the statute allowing it. We do not agree with this argument.

Code § 19.1-20 confers on a conservator the power to require a person 'not of good fame' to give security for his 'good behavior' for a term not to exceed one year. This section is implemented by the procedure provided for in § 19.1-21. The length of time for which a recognizance may be required under § 19.1-22 is found in § 19.1-20. Thus it readily appears that these three sections, and the right of appeal allowed under § 19.1-23, all deal with 'preventive justice' under chapter 2 of the criminal procedure section of the Code, and are to be read and considered together. Rohanna v. Commonwealth, supra, 168 Va. at p. 701, 190 S.E. at p. 173. Hence the right of appeal from the judgment of the justice of the police court, acting as a conservator of the peace, to the Hustings court, is specifically allowed under Code § 19.1-23.

But, says the Commonwealth, even if the appeal to the court below is allowed under Code § 19.1-23, there is no statutory authority conferring jurisdiction on this Court to hear this appeal because the defendant was not charged with a crime, and the requirement to give security for good behavior is not punishment for a past crime but is for the prevention of a future offense. Thus it is argued that the offense is neither criminal nor civil, and this Court has no statutory authority to entertain this appeal.

A...