Hall v. Commonwealth

• Decision Date: 12 November 1925
• Court: Virginia Supreme Court
• Parties: HALL. v. COMMONWEALTH.

130 S.E. 416

HALL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 12, 1925.

Error to Circuit Court, Albemarle County.

Oscar B. Hall was convicted of transporting ardent spirits and having on his person a firearm while so transporting it, and he brings error. Affirmed.

W. O. Fife, of Charlottesville, and J. T. Coleman, Jr., of Lynchburg, for plaintiff in error.

The Attorney General, for the Commonwealth.

WEST, J. Oscar B. Hall was tried under an indictment charging him in one count with transporting ardent spirits, and in another with having on his person a firearm while so transporting it. The jury found him guilty, and fixed his punishment at six months in jail. The judgment entered against him upon that verdict is before us for review.

The trial court certifies as a part of the facts adduced at the trial by the commonwealth:

"One Percy Harris testified that on the evening of the 2d day of September, 1923, at about 7:30 o'clock, he was driving an automobile out of the town of Scottsville, Va., accompanied by his son, son-in-law, and his wife, when he heard a car behind him, and driven by the defendant, blowing and sounding his horn for the road, that witness drew over to his side, and permitted defendant to pass; that shortly thereafter the witness passed defendant's car; and that thereupon the defendant, driving in a reckless manner and at a terrific rate of speed, to wit, 40 miles per hour, repassed the witness, and at the time of so doing the defendant leaned forward in his (defendant's) car, and directed at the witness a violent oath; that the defendant ran his car a short distance up the road ahead of witness, and struck a telephone pole on the side of the road; that the witness drove up to the scene of the accident, and there found the defendant in an intoxicated condition; and that the latter immediately began to curse and abuse the witness again in a violent manner; that a woman and child were also in defendant's car; and that the child had been rendered partially unconscious, as the witness thought, by the accident; that the witness attended the child, and the defendant was, during all of this time, cursing and abusing the witness violently, though he' made no actual threats or demonstration toward the witness; that the defendant was in his shirt sleeves, and had a pistol in a holster strapped aroundbis waist, not concealed, and in plain view; that the witness sent an occupant of his car back to Scottsville for an officer; and that shortly thereafter the mayor of the town of Scottsville, one Jackson Beal, arrived upon the scene of the accident in company with the sergeant of the said town; and that the mayor thereupon placed the defendant under arrest; that the witness, Harris, took the pistol from the person of the defendant in the presence of the mayor; that the mayor thereupon ordered one Percy Harris, Jr., and one John Moulton to search the car of the defendant for ardent spirits; that the search revealed no ardent spirits in the car, but the defendant was seen, while the search was in progress, to throw a package across the road; that the mayor thereupon directed some of the bystanders to get it; and that said Percy Harris, Jr., picked up the package from the road, and handed the same to Sergeant Beal; that Sergeant Beal had a flashlight, and upon his examination the package was found to contain a one-half gallon fruit jar in which was a small quantity of some ardent spirits. This liquor was exhibited to the jury. The one-half gallon jar contained approximately a pint of fluid.

"Another witness, said Percy Harris, Jr., also one John Moulton, testified to substantially the same facts that were testified to by Percy Harris, Sr., and in part this testimony of Percy Harris, Sr., was corroborated by Jackson Beal, mayor, and by W. S. Beal, sergeant of the town of Scottsville. None of the witnesses testified to having seen, the defendant take the package from the car, but he was seen by these witnesses to have thrown the package across the road. The witness, W. S. Beal, testified that the contents of the jar 'smelled like whisky.' "

The accused assigns as error, first, the action of the court in overruling his motion to quash the indictment.

The grounds of this motion are: (1) That the attorney for the commonwealth was allowed, after the grand jury had been sworn and charged by the court, to address it as to its duty under the law; (2) that the indictment, when delivered to the grand jury, contained the names of certain witnesses which were written thereon by the attorney for the commonwealth; (3) that the indorsement on. the indictment, "a true bill, " fails to show the official character of the juror who signed it, in that the word "foreman" does not appear thereon.

The Code, § 4864, makes it unlawful for the attorney for the commonwealth to "go before any grand jury during their deliberations except when duly sworn to testify as a witness, but he may advise the foreman of the grand jury or any member or members thereof in relation to the discharge of their duties."

It is the policy of the law and the purpose of this act to give to the grand jury the benefit of the advice of the attorney for the commonwealth relative to the discharge of their duties, without permitting him, by his presence, or otherwise, to influence them in reaching a conclusion during their deliberations.

It appears from the certificate of the trial judge that the attorney for the commonwealth, at the request of the court and in open court, laid before the grand jury certain indictments, and stated to them the law in regard to the various indictments which they were to consider, without specially referring to the indictment against the accused. He did not go before the grand jury "during their deliberations, " but simply advised the "members thereof in open court.

No right of the accused was violated. Code, § 4800, provides:

"When a presentment or indictment is so made or found, the names of the grand jurors giving the information, or of the witnesses, shall be written at the foot of the presentment or indictment."

Following the usual custom, the attorney for the commonwealth wrote the names of the commonwealth's witnesses at the foot of the indictment before sending it to the grand jury. This was done for the convenience of the jury, and its action in returning the indictment with the names thereon was a ratification of the act of the attorney for the commonwealth, and made his act theirs.

This court having held that section 4860 is merely directory, the names of the witnesses might have been omitted altogether without invalidating the indictment Clopton's Case, 109 Va. 815, 63 S. E. 1022.

The failure of the foreman of the grand jury to write the word "Foreman" after his name is a matter of no moment. The entry on the order book showing the finding of the grand jury is sufficient evidence of that fact, and makes it immaterial whether the words "a true bill" were in fact indorsed on the indictment or not. Price's Case, 21 Grat. (62 Va.) 862.

The second and third assignments of error involve the action of the court in permitting the commonwealth to prove that the accused, a very short time prior to committing the offense complained of, while intoxicated, was operating an automobile on the public road at an unlawful rate of speed, and cursed and abused one Fercy Harris.

The contention is that the court permitted proof of other crimes to the prejudice of the accused. This is permissible, when, as in the instant case, the circumstances necessary to establish the charge for which the accused is being tried are so connected with circumstances which tend to show other criminal acts that the proof of the principal offense involves the proof of another offense. Walker's Case, 1 Leigh (28 Va.) 574. in such cases the evidence complained of is admissible as a part of the res gestae. Snarr v. Commonwealth, 131 Va. 814, 109 S. E. 590.

The law will not permit one accusedof crime to go unpunished simply because the commonwealth cannot prove his guilt without bringing in some evidence which tends to show that he has committed other crimes. If the evidence objected to was improperly admitted, the error was harmless, since the guilt of the accused was clearly established by the evidence, and the jury gave him the minimum punishment for the offense charged in the second count of the indictment.

The fourth assignment of error is the refusal of the court to permit the accused to prove by the deputy clerk of the court that the accused had been convicted in said court of operating a car while under the influence of liquor on the 2d day of September, 1923, the day on which the offense for which he was being tried was alleged to have been committed.

The driving of an automobile while intoxicated was a separate offense from that of transporting ardent spirits, and proof of a conviction of the former would not bar a prosecution for the latter. The evidence was in material and irrelevant, and was properly excluded. 16 C. J. p. 272, § 453.

The fifth assignment of error is the action of the court in refusing to permit the accused to prove that he was a special constable, or special officer, and had a warrant to arrest a man charged with a felony.

Section _51/2 of the Prohibition Law, as amended, approved March 23, 1922 (Acts 1922, p. 575), provides as follows:

"If any person shall unlawfully manufacture, transport, or sell any ardent spirits, as herein defined, and at the time of such manufacturing, transporting, or selling, or aiding or assisting in any manner in such act, shall carry on or about his person, or have on or in any vehicle which he may be using to aid him in any such purpose, or have in his possession, actual or constructive, at or within one hundred yards of any place where any such intoxicating liquor is being unlawfully manufactured, transported or sold, any firearm, dirk, bowie-knife, razor, slung-shot, metal knucks or any...