Fenner v. Commonwealth

• Decision Date: 13 June 1929
• Citation: 148 S.E. 821
• Court: Virginia Supreme Court
• Parties: FENNER. v. COMMONWEALTH.

148 S.E. 821

FENNER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 13, 1929.

Error to Circuit Court, Chesterfield County.

Robert Lee Fenner was convicted of robbery, and he brings error. Affirmed.

Leith S. Bremner and Thos. O. Moss, both of Richmond, and E. L. Travis, of Halifax, N. C, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Edwin H. Gibson, Asst. Attys. Gen., for the Commonwealth.

PRENTIS, C. J. The accused has been convicted of robbery and sentenced to twelve years' imprisonment in the state penitentiary.

The Chesterfield County Bank, located at Chester, just before 3 o'clock in the afternoon, December 21, 1927, was entered and robbed by two unmasked men. They were both armed. The assistant cashier and a young woman, an employee of the bank, were required to hold up their hands, and, at the point of pistols marched to the bank vault, confined therein, $4,722.10 in money was taken, and the door of the vault closed while the robbers escaped. The case is here for review.

The accused sought to prove an alibi.

The first assignment of error is based upon this instruction: "The court instructs the jury that although the burden rests upon the Commonwealth to make out its case against the accused to the exclusion of any reasonable doubt, yet, where the accused relies upon or attempts to prove an alibi in his defense, the burden of proving the alibi rests upon him."

It is strange that prosecuting attorneys continue to ask for this instruction and trial courts continue to give it, for, while similar instructions have been held harmless, they have frequently been criticised, and these criticisms show that there is no difficulty in framing a proper instruction covering the point and fair to the accused, which could not be questioned.

There have been two recent cases in this jurisdiction.

In Draper v. Commonwealth, 132 Va. 648, 661, 111 S. E. 471, 475, this is said as to an instruction substantially similar: "The proposition contained in the concluding part of the foregoing instruction gives rise to the question here under consideration. That proposition, standing alone, would indicate that there must be a preponderance of evidence for the alibi, and would constitute reversible error were it not rendered harmless by the context, and by the language of other instructions in the case."

In that case this is quoted from 2 Am. & Eng. Ency. (2d Ed.) p. 53: " 'Alibi is regarded by some courts as' a special 'affirmative defense, but the better doctrine seems to be that it is not a defense in the accurate meaning of the term, but a mere fact shown in rebuttal of the State's evidence; and, consequently, the evidence introduced to support it should be left to the jury, uninfluenced by any charge from the court tending to place it upon a different footing from other evidence in the case or calculated to disparage and excite prejudice against it' See also State v. Kelly, 16 Mo. App. 213; Albritton v. State, 94 Ala. 76, 10 So. 426; State v. Reed, 62 Iowa, 40, 17 N. W. 150; State v. Rockett, S7 Mo. 666; 1 Bishop, Crim. Proc. 1062."

The rule is thus stated in Beale's Crim. Pl. & Pr. § 289: '"Thus, where the evidence offered by the defendant is of an alibi—that is, that he was at another place at the time the crime was committed, and therefore could not have committed it—he is obviously merely disproving the truth of the prosecution's evidence or inference from evidence; he is making an absolutely negative defense. It is not for him to establish an alibi, but simply to throw doubt on the case of the prosecution. Clearly, therefore, when he produces evidence tending to prove an alibi, no burden is on him; if he raises a reasonable doubt of the charge, he is to be acquitted.' See, also, 4 Wigmore on Evidence, p. 3561, § 2512, par. (a), and cases cited in note 3."

In Draper v. Commonwealth, supra, we approved the following statement from 2 Am. & Eng. Enc. (2d Ed.) p. 56: "The true doctrine seems to be that where the State has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused."

The reason the instruction in the Draper Case was not held to be reversible error was because it was rendered harmless by the context and by the language of other instructions in the case.

In Jolly v. Commonwealth, 136 Va. 764, 118 S. E. 109, a similar instruction was held harmless for like reasons; i. e., because of other instructions which sufficiently emphasized the correct rule.

When such an instruction as to the burden resting on the accused to prove his alibi is given, the qualifications should be expressed therein.

In this case the trial court told the jury that the instructions must be considered as a whole, and also gave the jury a specific instruction referring to the identity of the accused—his alibi—thus: "The court instructs the jury that so far as the identity of the defendant is concerned, that if they believe from the evidence and the circumstances proven that there is a reasonable doubt as to whether the witnesses might not be mistaken as to his identity, then the jury cannot convict the defendant; the evidence and circumstances tending to establish his identity must be such as, with other testimony, produces a degree of certainty in the minds of the jury so great that they have no reasonable doubt as to the identity of the defendant"

This instruction, together with several others which repeatedly told the jury that they could not convict the prisoner unless they believed him guilty to the exclusion of every reasonable doubt, is sufficient in our opinion to justify the conclusion that the Jury were not misled in this case by the instruction complained of.

The second assignment of error is based upon the refusal of the court to set aside the verdict upon the ground of after-discovered evidence.

The accused had been sentenced April 21, 1928. Three weeks later, but during the same term, he filed a number of affidavits, in support of this motion, the substance of which may be thus summarized: Anna Johnstone, then recently widowed, claiming to have been the wife of Robert L. Johnstone, a notorious criminal, made oath that her deceased husband had confessed to her that he, together with one Fay Green, were the two persons who committed the robbery; that she felt it her duty to disclose this to Mr. Moss, who she had been led to believe represented her husband, and Moss in turn disclosed it to the attorneys for Fenner, the accused. The petition states that her husband had been killed while committing another robbery in Virginia. Her affidavit gives the details of this alleged confession, names "Kid" (Lee) Mickelboro as the accomplice who drove the car and stayed outside of the bank while the robbery was being committed, and that he told her they (with Chappelle, another of the affiants) were planning to rob banks at Centreville, Md., and Dover, Del. This affidavit is in some respects obscure and inconsistent, in all respects remarkable, and conflicts in some particulars with those of some of the other affiants whose affidavits were also filed in support of the same motion. Mrs. Johnstone says (regretfully it seems) that all she got out of it was one new dollar bill. Ada Chappelle told her that the only thing she got out of it was a brown coat and a $2.50 gold piece which Fay Green dropped or lost, while Mrs. Johnstone told Ada Chappelle that that was more than she (Mrs. Johnstone) got out of it—referring to the money of which the Chester bank had been robbed. Mrs. Henderson, however, said in her affidavit that, when Mr. Johnstone came in, after being away all day, he gave Mrs. Johnstone a handful of gold. "Four persons in my house saw it, and Mr. Johnstone told' my little boy, Willie, that he (Johnstone) had $350 in gold." (It is observed that Miss Martha Vaughan, the clerk in the bank, had stated in her testimony that one of the robbers referred to the other as Jimmy Johnson. It also appears that Johnson was the name which had been applied to Fenner by some, including Mrs. Crowder's son, while he was at Mrs. Crowder's house at Norfolk just before he was arrested.)

Another of the affidavits is made by an officer named Johnson, to the effect that one of the commonwealth's witnesses, Smith, who testified that he had seen Fenner on a public highway in Mecklenburg county on or about December 23, failed to recognize Fennerwhen he was in the Richmond city jail while he (Johnson), as deputy sergeant of Richmond, was making an effort to identify Fenner. If this be true, Fenner then knew before his trial of Smith's previous failure to identify him, and so, when confronted by Smith on the witness stand with this occurrence, he could have secured the testimony of this affiant, if material. There is nothing to support his claim that he could not have secured this evidence and offered it at the trial.

We do not think it important to add to this incomplete recital. The chief basis of the motion is the two affidavits of Mrs. Johnstone, to whom she says her deceased husband made the confession, supplemented by that of Chappelle, who she shows was one of a criminal gang. The other affidavits are introduced by way of support as to circumstances which are deemed material. Except as to Mrs. Johnstone, whose hope of sharing the loot vanished with Johnstone's death, it does not clearly appear that all of these affiants might not have been procured as witnesses had proper diligence been exercised.

In considering this motion, it is and should be borne in mind that Fenner was positively identified by three reputable witnesses who had no doubt of his identity, two of whom were in the bank at...