Harris v. Commonwealth

• Decision Date: 20 January 1921
• Citation: 105 S.E. 541
• Parties: HARRIS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

105 S.E. 541

HARRIS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Circuit Court, Prince "William County.

Winnie Harris was convicted of robbery, and he brings error. Affirmed.

R. A. Hutchison, of Manassas, for plaintiff in error.

Jno. R. Saunders, Atty. Gen., for the Commonwealth.

KELLY, P. Upon an indictment for robbery Harris was tried, convicted and sentenced to the penitentiary for the term of eight years.

1. As a witness in his own behalf he undertook to give an account of his whereabouts and occupation from the year 1908 until the date of the robbery, and in doing so he testified with apparent emphasis that during all of that period he had been working for a firm in the town of Manassas, where the crime was committed, with the exception of a year when he was working on the streets of the town, and the further exception of a then recent absence in France as a member of the army. On cross-examination he admitted that he was in Atlanta in 1910, and was then asked by the attorney for the commonwealth, "What were you doing down there?" His counsel objected, but the court held that the question was within the legitimate scope of cross-examination, and he answered, "I was in prison." His counsel then moved the court to exclude the answer, and the motion was overruled. This action of the court in permitting the question and refusing to exclude the answer is the basis of the first assignment of error; and it is argued that in the absence of proof showing his imprisonment in Atlanta to have been for an offense involving his character for truth on oath, the question was inadmissible. The argument overlooks the fact that the prisoner had voluntarily and with the quite manifest purpose of improving his standing with the jury, put in issue his residence and occupation from 1908 to 1920. Having done so, he could not successfully object to a full cross-examination upon those facts. The following authorities, if not directly in point, illustrate and support the principle: Va., etc., Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976; O'Brien v. Commonwealth, 89 Ky. 354, 12 S. W. 471; Prather v. State, 14 Okl. Cr. 327, 170 Pac. 1176; People v. Barry, 132 App. Div. 231, 116 N. Y. Supp. 870; State v. McLaughlin, 149 Mo. 19, 50 S. W. 315; People v. Buckley, 143 Cal. 375, 77 Pac. 169; Lawson v. Hobbs, 120 Va. 690, 696, 91 S. E. 750.

The cases of Langhorne v. Commonwealth, 76 Va. 1012, Uhl v. Commonwealth, 6 Grat (47 Va.) 706, Cutchin v. Roanoke, 113 Va. 453, 74 S. E. 403, and Allen v. Commonwealth, 122 Va. 834, 94 S. E. 783, relied upon by counsel for the prisoner, do not support his contention, and are not in conflict with the action of the trial court. The distinguishing and controlling feature in the instant case is found in the fact that the prisoner voluntarily put his residence and occupation in issue, and thereby opened the way to the cross-examination.

The cause and nature of the imprisonment in Atlanta do not appear, and it is suggested on behalf of the accused that leaving the matter thus to conjecture might have seriously and unjustly injured him in the estimation of the jury. A sufficient answer to this suggestion is that he had the right, if he so desired, to tell the jury, on a redirect examination, all about his imprisonment (Ferries Co. v. Brown, 121 Va. 13, 15, 92 S. E. 813), and he did not see fit to do so.

2. The officer who arrested the prisoner took certain money from his person, and the same was held and used as evidence against him. At the...