Flanary v. Commonwealth

• Decision Date: 05 September 1945
• Citation: 184 Va. 204,35 S.E.2d 135
• Court: Virginia Supreme Court
• Parties: FLANARY. v. COMMONWEALTH.

35 S.E.2d 135

184 Va. 204

FLANARY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept 5, 1945.

SPRATLEY, HOLT, and EGGLESTON, JJ., dissenting.

Error to Circuit Court, Wise County; George Morton, Judge.

Jeff Flanary was convicted of murder in the second degree, and he brings error.

Reversed, jury's verdict set aside, and prosecution dismissed.

Cecil D. Quillen and Hagan Bond, both of Gate City, E. D. Vicars, of Wise, and A. G. Lively, of Lebanon, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

An indictment, charging Jeff Flanary, Wilmer Whited and John W. Sturgill with murder of one Pete Hamilton, was returned March 27, 1937. The parties demanded a severance, and, on motion of the Commonwealth, the case was continued against each accused. When the case against Flanary was called for trial on April 5, 1939, he filed a plea in bar and moved to dismiss on the ground that three regular terms of the circuit court had passed without trial since the indictment was returned, that the continuances were not made on his motion, and that they were not based on any of the exceptions set forth in Michie's Code 1942, sec. 4926.^* The plea was rejected and the motion overruled. To this action a writ of error was awarded but later dismissed on the ground that it was prematurely granted. See Sturgill v. Commonwealth, 175 Va. 584, 585, 7 S.E.2d 141. On May 22, 1944, the case against Flanary was again called for trial, and he again moved to dismiss the prosecution against him on the grounds formerly stated. This motion was overruled. The trial proceeded, and the jury found him guilty of murder in the second degree and fixed his punishment at 12 years in the State penitentiary, on which verdict judgment was pronounced. It is to that judgment this writ of error was awarded.

The accused contends that the trial court erred in its refusal to sustain his motion to dismiss the prosecution and discharge him because the trial was not had within the time stated in the statute.

It is conceded that the continuance on motion of the Commonwealth, made at the term at which the accused was indicted, is not to be counted as one of the three regular terms contemplated. Kibler v. Commonwealth, 94 Va. 804, 26 S.E. 858.

The record discloses that, at the August term, 1937, the case was continued on motion of the attorney for the Commonwealth; at the April term, 1938, the order entered reads: "This case is hereby continued"; and at the February term, 1939, the order entered reads: "This case is hereby continued generally."

These orders make a prima facie case for the accused. The Commonwealth recognized this fact and attempted to overcome the force and effect of the orders by introducing the parol testimony of three witnesses, two deputy clerks and the Commonwealth attorney of the county of Wise. The substance of the testimony of the two deputy clerks was their personal understanding or construction of the two orders according to local custom. This testimony was not enlightening, was irrelevant and was inadmissible.

The attorney for the Commonwealth testified that on two occasions—one just prior to the time the order was entered in April, 1938, and the other just prior to the time the order was entered in February, 1939—he, in response to an inquiry, said toone or both of the attorneys for the accused that he did not think the case would be tried at the April term or at the February term of the court. He did not state that the attorneys for the accused agreed to either of the continuances. He does state: "That was all that was said at that time and I had no knowledge of how the orders were made. The defendants had not asked for trial at those terms of court and neither had the Commonwealth."

These facts narrow the issue to the question, whether an accused must take positive action by demanding a speedy trial within the time stated before he may invoke the provisions of the statute.

This court has stated in numerous cases (Com. v. Adcock, 8 Gratt. 661, 49 Va. 661; Brown v. Epps, 91 Va. 726, 21 S.E. 119, 27 L.R.A. 676; Nicholas v. Com., 91 Va. 741, 21 S.E. 364; Benton v. Com., 91 Va. 782, 21 S.E. 495; Kibler v. Com., supra; Wad-ley v. Com., 98 Va. 803, 35 S.E. 452; Butts v. Com., 145 Va. 800, 133 S.E. 764) that the statute, Code, sec. 4926, is the interpretation by the legislature of what constitutes a "speedy trial, " as that term is used in the Bill of Rights, § 8.

The facts in Butts v. Commonwealth, supra, were that the jury returned a verdict of guilty against the accused on the 12th day of February, 1923. A motion was promptly made to set aside the verdict and grant the accused a new trial, but this motion was not overruled until the 21st day of November, 1925, when judgment was entered on the verdict. In the opinion by Judge Burks, 145 Va. at page 807, 133 S.E. at page 766, it was said: "The statute gives the commonwealth three regular terms of a circuit court after the accused is held for trial within which the commonwealth may afford such trial. The term at which the indictment is found is excluded from the calculation (Kibler v. Commonwealth), and after this the commonwealth has three regular terms of the circuit court, at any one of which the accused may be tried without offering any excuse for delay; but, after the expiration of these three terms, unless the commonwealth shall bring herself within the exceptions mentioned in section 4926, the statute provides that the accused 'shall be forever discharged from prosecution for the offense.' In other words, it is a legislative pardon for the offense if the trial is not had within the time prescribed by the statute; but the accused never availed him self of the provision made for his benefit. * * * and now asserts his right to a discharge from prosecution for the first time in this court." In other words, it was held that the accused had waived his right to take advantage of the statute by not raising the question in the lower court.

The facts in the present case are quite different. The accused, both by an oral motion and a plea in bar, raised the issue, but his plea was rejected and his motion overruled on the ground that the accused had waived his right by failure to demand a trial within the time specified.

The right of a speedy trial to a person charged with a criminal offense is guaranteed by the Sixth Amendment to the Federal Constitution and by the Constitutions of most of the States. The legislative meaning of the term "speedy trial" has been incorporated in statutes of the various states. The language of these statutes differs and hence different interpretations of the legislative intent are found in the various state reports. Many of these are annotated in 129 A.L.R. 572. However, these opinions are not controlling because this court is bound by the meaning of the language used in section 4926 and not by statements of other courts interpreting the language of their statutes.

It was held in the Kibler case, supra, that the accused had waived his right to be tried within the term specified because the order entered at one of the three regular terms showed that the case was continued by the express consent of his counsel. We have found no case in Virginia which holds that the accused waives his right simply by failing to oppose a motion for a continuance made by the Commonwealth. Indeed, it is conceded by the Attorney General that the regular August, 1937, term of court should be counted. The order continuing the case simply states: "On motion of the attorney for the Commonwealth, the case is continued." It does not appear, nor is it contended, that the accused objected to the motion.

The pertinent evidence regarding the other two continuances is that the Commonwealth's attorney told the attorneys for the accused that he did not think the case would be tried at either of the two terms mentioned. The attorneys for the accused made no agreement. They simply did not reply to his statement. In other words, the attorneys for the accused and the accused remained passive. They did not oppose themotion that was made for a continuance, nor did they object or protest when the Commonwealth's attorney stated that he did not think the case would be tried.

When the accused established the fact that three regular terms of the Circuit Court of Wise county had been held without trial of this case pending therein, the burden was on the Commonwealth to show that the failure to try him was due to one of the following causes: (1) His insanity, (2) his confinement in a hospital for the insane for care and observation, (3) the witnesses for the Commonwealth being enticed or kept away or prevented from attending by sickness or inevitable accident, (4) continuance granted on the motion of the accused, (5) his escaping from jail or failing to appear according to his recognizance, (6) the inability of the jury to agree on their verdict, (7) where no court was held at one of the regular terms, (8) where there is court held and for any reason it would be injudicious, in the opinion of the court, to have jurors and witnesses summoned for that term, which reason shall be specially spread upon the records of the court, or (9) the case had been tried and was pending in the appellate court.

It will be noted that exceptions numbered 3, 4, 5 and 9 are grounded on some positive act of the accused tending to delay the trial. The other exceptions are based upon the health of the accused, the health of the witnesses or some fortuitous circumstances which impel the trial court to postpone the trial. There is no evidence tending to show that either the accused or his counsel was guilty of fraud or trickery. Proof that the accused remained silent or that he did not demand a trial is not sufficient to overcome the prima facie case made by the accused.

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