Fenner v. Commonwealth

• Decision Date: 13 June 1929
• Citation: 152 Va. 1014
• Court: Virginia Supreme Court
• Parties: ROBERT LEE FENNER v. COMMONWEALTH.

Page 1014

152 Va. 1014

ROBERT LEE FENNER v. COMMONWEALTH.

Supreme Court of Virginia, Wytheville.

June 13, 1929.

1. ALIBI — Proof of Alibi — Whether Burden of Proof on Accused — Instructions — Case at Bar. — The instant case, a prosecution for robbery in which accused attempted to set up an alibi, the trial court instructed 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."

Held: That while the concluding part of this instruction, standing alone, would indicate that there must be a preponderance of evidence for the alibi, and would have constituted reversible error, were it not that other instructions in the case told the jury if there was a reasonable doubt, when all the evidence was considered, that accused was guilty, they must aquit, and a specific instruction as to the identity of the accused — his alibi — correctly stated the law, rendered the error harmless.

2. ALIBI — Nature of Alibi — Whether a Defense — Instructions. Alibi is regarde 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.

3. ALIBI — Proof of Alibi — Preponderance of Evidence — Reasonable Doubt. — The true doctrine seems to be that where the State has established a prima facie case and the defendant relies upon the defense of an alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of 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.

4. ALIBI — Proof of Alibi — Preponderance of Evidence — Burden of Proof — Instructions. — When an instruction is given that the burden of proving an alibi is on accused, it should be qualified by the statement that he need not prove it beyond a reasonable doubt or by a preponderance of evidence, but by such evidence, and to such degree of certainty as, when the whole evidence is considered, creates a reasonable doubt as to his guilt.

5. NEW TRIAL — Newly Discovered Evidenced — Evidence which would Change Result — Case at Bar. — In the instant case accused was found guilty of robbery. The trial court refused to set aside the verdict on the ground of after-discovered evidence. The chief basis of the motion was affidavits of a widow that her deceased husband confessed that he and another, not the accused, committed the robbery, supplemented by the affidavit of another member of a criminal gang. Other affidavits were introduced by way of support as to circumstances which were deemed material. The widow's affidavit was in some respects obscure and inconsistent, in all respects remarkable, and conflicted in some particulars with those of some of the other affidavits. Accused was positively identified by three reputable witnesses, who had no doubt of his identity, as a participant in the robbery.

Held: That in view of this credible evidence of identification there was no reason to suppose that the belated and somewhat unusual statement of the widow that her husband confessed the crime, had it been secured in advance of the trial, would or should have changed the result, and therefore the trial court did not err in refusing a new trial.

6. NEW TRIAL — Newly Discovered Evidence — Evidence which Might have been Secured at Trial — Case at Bar. — In the instant case, a conviction for robbery, an affidavit of an officer in support of a motion for a new trial was to the effect that one of the Commonwealth's witnesses, who testified that he had seen accused at a particular place on a certain day, failed to recognize the accused when he was in Richmond city jail. If this be true, accused then knew before his trial of the witnesses previous failure to identify him, and so when confronted by the witness on the witness stand with this occurance, he could have secured the testimony of this affidant, if material.

7. NEW TRIAL — Newly Discovered Evidence — Evidence which Might have been Secured at Trial. — To warrant a new trial for after-discovered evidence it must clearly appear that the evidence offered to sustain the motion for a new trial could not with proper diligence have been secured for the original trial.

8. WITNESSES — Impeachment — Collateral Facts — General Reputation. — In general, the rule is that upon examination to try the credit of the witness only general questions can be put; and he cannot be asked as to any collateral independent facts merely with a view to contradict him afterwards by calling another witness.

9. WITNESSES — Impeachment — Character for Truth and Veracity — General Moral Character. — While there is no doubt that the general reputation of a witness for truth and veracity may be shown, for this goes directly to discredit his testimony, the authorities differ as to whether his general moral character can be shown. In Virginia it is held that a party seeking to impeach a witness will not be allowed to ask what the general character of the witness is in relation to other matters, as well as to his veracity.

10. WITNESSES — Impeachment — Character for Truth and Veracity — General Moral Character — Case at Bar. — In the instant case, a prosecution for robbery, a witness for the Commonwealth testified that the general reputation of a witness for accused, for truth and veracity, was bad and that he would not believe her on oath. He was then asked as to her reputation as an immoral woman, and, over objection by the accused, was permitted to answer.

Held: That the question should not have been permitted, but under the circumstances the case should not be reversed.

11. APPEAL AND ERROR — Harmless Error — Reception and Rejection of Testimony. — Technical error committed by a trial court, in the reception or rejection of evidence, does not necessarily constitute harmful error. It is injury resulting from error that warrants an appellate court in reversing a judgment of the trial court. A judgment of conviction will not ordinarily be reversed, even if technical errors were committed in rulings on the admissibility of evidence, where the evidence of guilt is ample and no fundamental rights of the accused have been infringed.

12. WITNESSES — Impeachment — Character of Witness as Immoral Woman — Case at Bar. — In the instant case, a prosecution for robbery, witness was permitted to answer a question as to the reputation of the chief witness for the accused as an immoral woman, over the objection of the accused. It was contended that the question was allowed as tending to show possible intimacy of the accused with the witness, and thus disclose her bias as a witness in favor of accused.

Held: That, while it was questionable whether this bias could be shown in this way, yet in view of the fact that accused had been positively identified as one of the guilty parties to the robbery, that he had made incriminating admissions to the officers who arrested him, and that from the admissions of the witness in question her reputation for virtue must have been bad, no other verdict should have been rendered.

13. WITNESS — Impeachment — Testing Accuracy and Memory — Case at Bar. — In the instant case, a prosecution for robbery, the chief witness as to accused's alibi had testified as to his whereabouts during the week of December 21st, the time of the robbery. The prosecuting attorney first, and then the attorney for the accused, in testing the accuracy of her memory, had asked her where accused was on other days of the week, among other days, December 23rd, and she had testified that he was at her home practically all of that day. A witness for the Commonwealth testified he had seen accused a hundred miles away on that day. The admission of this testimony was assigned as error, as being an attack upon the credibility if the witness. The reply to this is that it was not an attack upon the credibility of the witness as necessarily imputing intentional falsity, but it was intended to test the accuracy of her memory concerning the events which happened at or near the time of the robbery. If the fact was irrelevant and collateral to the issue, then it could not be contradicted.

14. ALIBI — Evidence to Support — Whereabouts of Accused Before and After Crime — Case at Bar. — The instant case was a prosecution for robbery, and accused attempted to set up an alibi. A witness for the accused, without objection, undertook to account for his continuous presence in Norfolk for several days both before and after the day of the robbery, and if this evidence was revelant for the purpose of supporting the alibi on the precise date of the robbery, it cannot be said that contradictory testimony tending to destroy it was irrelevant.

15. WITNESS — Corroboration by Statements of Witness to Others — Witness not Impeached — Case at Bar. — In the instant case, a prosecution for robbery, where accused defense was an alibi, two boys testified that they had seen accused at a house in Norfolk, on the day of the robbery, and told two ladies on their return to the house that accused had been there to see them. These ladies were offered as witnesses but were excluded by the court. No imputation had been made against the boys and their evidence was before the jury. Accused might have been in Norfolk at the time the boys claimed to have seen him and still have been at the scene of the crime.

Held: That ...