Flanary v. Commonwealth
| Decision Date | 05 September 1945 |
| Docket Number | Record No. 2918. |
| Citation | 184 Va. 204 |
| Court | Virginia Supreme Court |
| Parties | JEFF FLANARY v. COMMONWEALTH OF VIRGINIA. |
1. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Term at Which Indicted Not Counted. — The term at which the accused was indicted is not to be counted as one of the three regular terms contemplated by section 4926 of the Code of 1942, providing that every person against whom an indictment is found charging a felony shall be discharged from prosecution for the offense, if there be three regular terms of the circuit court in which the case is pending after he is so held without a trial.
2. PAROL EVIDENCE — Meaning of Orders Continuing Cause — Testimony of Deputy Clerks as to Custom — Case at Bar. — In the instant case, a prosecution for homicide, accused moved to dismiss on the ground that three regular terms of the circuit court had passed without trial since the indictment was returned, that continuances in the case were not made on his motion, and that they were not based on any of the exceptions set forth in section 4926 of the Code of 1942, specifying the time within which an indictment for a felony must be tried. One order entered read "This case is hereby continued", and the another read "This case is hereby continued generally", and the Commonwealth introduced the parol testimony of two deputy clerks as to their understanding of the constitution of the two orders according to local custom.
Held: That this testimony was irrelevant and inadmissable.
3. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Legislative Interpretation of "Speedy Trial". — Section 4926 of the Code of 1942, specifying the time within which an indictment for a felony must be tried, is the interpretation by the legislature of what constitutes a "speedy trial", as that term is used in the Bill of Rights.
4. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Silence or Failure to Demand Trial. — 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 accused when he has established the fact that three regular terms of the circuit court have been held without trial of an indictment for a felony pending therein.
5. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Duty of Officers. — It is the duty of officers charged with the responsibility of enforcing the criminal laws of the Commonwealth to prepare for and obtain a trial of an accused within the three regular terms of court specified in section 4926 of the Code of 1942.
6. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Silence or Failure to Demand Trial. — In section 4926 of the Code of 1942, providing that every person against whom an indictment is found charging a felony shall be discharged from prosecution, if there be three regular terms of the circuit court in which the case is pending after he is so held without a trial, unless the failure to try him was caused, among other things, by a continuance granted on the motion of the accused, the words "continuance granted on the motion of the accused" do not convey the same meaning as "silence" or "the accused must demand a trial" before three terms of the circuit court have elapsed between the return of the indictment and his trial.
7. STATUTES — Construction — Wisdom Not to Be Passed upon. — It is the duty of the Supreme Court of Appeals to construe the language of a statute and not to pass upon its wisdom.
8. STATUTES — Construction — Words to Be Given Ordinary Meaning. — To read into a statute a meaning which is contrary to the ordinary definition of the words used is judicial legislation and not judicial construction.
9. CONSTITUTIONAL LAW — Speedy Trial — Code Section 4926 — Mere Silence on Part of Accused — Case at Bar. — In the instant case, a prosecution for homicide, accused moved to dismiss on the ground that three regular terms of the circuit court had passed without trial since the indictment was returned, that continuances in the case were not made on his motion, and that they were not based on any of the exceptions set forth in section 4926 of the Code of 1942, specifying the time within which an indictment for a felony must be tried.
Held: That the prosecution should be dismissed, since the meaning of the words used in the statute would be nullified if the court held that were silence on the part of accused had the same force and effect as a motion made by him to continue the case.
Error to a judgment of the Circuit Court of Wise county. Hon. George Morton, judge presiding.
The opinion states the case.
Cecil D. Quillen, Hagan Bond, E. D. Vicars and A. G. Lively, for the plaintiff in error.
Abram P. Staples, Attorney General, and M. Ray Doubles, Assistant Attorney General, for the Commonwealth.
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 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 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 to one 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:
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 (Commonwealth Adcock, 8 Gratt. (49 Va.) 661; Brown Epps, 91 Va. 726, 21 S.E. 119, 27 L.R.A. 676; Nicholas Commonwealth, 91 Va. 741, 21 S.E. 364; Benton Commonwealth, 91 Va. 782, 21 S.E. 495; Kibler Commonwealth, supra; Wadley Commonwealth, 98 Va. 803, 35 S.E. 452; Butts Commonwealth, 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.
The facts in Butts 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, at page 807, it was said: ...
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