Hey v. Commonwealth

• Decision Date: 04 December 1879
• Citation: 73 Va. 946
• Parties: HEY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

73 Va. 946

HEY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 4, 1879

1. On a trial of a prisoner for receiving goods knowing them to be stolen, on the motion of the attorney for the commonwealth without objection by the prisoner's counsel, the court directs the witnesses to leave the court room; and they all leave but one, who was in the prisoner's box in the court room, held on a requisition from the governor of North Carolina upon the charge of the larceny of the same goods. In the progress of the trial the attorney for the commonwealth offers this man as a witness, and he is objected to by the prisoner, on the ground alone of his remaming in the court room, after the order of the court. He is a competent witness.

2. To sustain the prosecution under the statute four things must be proved. 1st. That the goods or other things were previously stolen by some other person. 2. That the accused bought or received them from another person, or aided in concealing them. 3. That at the time he so bought or received, or aided in concealing them, he knew they had been stolen. 4. That he so bought or received them, or aided in concealing them malo animo, or with a dishonest purpose.

3. Upon the question whether the accused bought the goods knowing them to have been stolen, the evidence being circumstantial evidence of the good character of the accused is competent and in this case held upon the whole evidence that it was not proved that the accused knew the goods had been stolen.

At the July term, 1879, of the hustings court of the city of Richmond, Henry W. Hey was indicted for feloniously buying or receiving, one double set of harness, of the value of $300, knowing them to have been stolen. On the trial the jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly. And he thereupon applied for a writ of error, which was allowed.

In the progress of the trial the prisoner took two bills of exception to rulings of the court. The first was to the admission of a witness by the commonwealth; and the second was to the refusal of the court to set aside the verdict and grant him a new trial, on the ground that the verdict was contrary to the evidence. The case upon both points is fully set out by Judge Burks, in his opinion.

Samuel M. and Charles L. Page, for the prisoner.

The Attorney-General, for the commonwealth.

OPINION

BURKS, J.

When Henry W. Hey (the plaintiff in error here) was on trial in the court below, before any evidence had been introduced, the attorney for the commonwealth asked that all of the witnesses should be sent from the court room, and no objection being made by the prisoner, this was ordered by the court, and all of the witnesses then sworn for the commonwealth, and the witnesses for the prisoner, were sent out, except Police Justice White, who, by consent of counsel on both sides, was allowed to remain. Afterwards, when evidence had been introduced tending to show that the prisoner obtained the goods mentioned in the indictment from one Augustus Byers, who had been arrested, as stated in the bill of exceptions, for the larceny of said goods, and was then in the prisoner's box in the court room, held on a requisition from the governor of North Carolina, the attorney for the commonwealth called said Byers, and asked that he be sworn as a witness for the commonwealth, but the counsel for the prisoner objected, on the ground, (and for no other cause), that Byers had remained in the court room, and had not been sent out with the other witnesses. The objection was overruled and the prisoner by counsel excepted. This action of the court is assigned as error.

In the trial of causes, both civil and criminal, it is a rule of practice devised for the discovery of truth and the detection and exposure of falsehood, and well adapted to the ends designed, for the presiding judge, on the motion of either party, to direct that the witnesses shall be examined out of the hearing of each other. Such an order upon the motion or suggestion of either party, it is said, is rarely withheld; but that, by the weight of authority, the party does not seem entitled to it as a matter of right. 1 Greenleaf Ev. § 432. To effect this object, generally, the respective parties are required to disclose the names of the witnesses intended to be examined, and then the witnesses are simply ordered to withdraw from the court room and warned not to return until called, or, as is sometimes the case, they are placed under the charge of an officer of the court, to be by him kept out of hearing in the jury room or some other convenient place, and brought into court when and as they may be severally needed for examination. If a witness or the officer in charge wilfully disobeys or violates such order, he is liable to be punished for his contempt, and at one time, according to the English practice, it was considered that the judge, in the exercise of his discretion, might even exclude the testimony of such a witness. But now, it seems to be the practice to allow the witness to be examined, subject to observation as to his conduct in disobeying the order. 2 Taylor on Ev. (7th ed.), §§ 1400, 1401, 1402; 3 Wharton's Crim. Law (7th ed.) § 3009(a ), note, and cases cited by these authors.

In Cobbett v. Hudson, 72 Eng. C. L. 11 (decided by queen's bench in 1852), Lord Campbell, C. J., observed, that with respect to ordering witnesses out of court, although this is clearly within the power of the judge, and he may fine a witness for disobeying this order, the better opinion seems to have been that his power is limited to the infliction of the fine, and that he cannot lawfully refuse to permit the examination of the witness. Citing Cook v. Nethercote, 6 C. & P. 471 (25 Eng. C. L.); Rex v. Colley, 1 Mood & Mal. 329 (22 Eng. C. L.); Thomas v. David, 7 C. & P. 350 (32 Eng. C. L.) And in Chandler v. Horne, 2 Moody & Robinson's Nisi Prius Cas. 423, Erskine, J., said, " It used to be formerly supposed that it was in the discretion of the judge whether the witness should be examined. It is now settled and acted upon by all the judges that the judge has no right to exclude the witness; he may commit him for contempt, but he must be examined; and it is then matter of remark as to the value of his testimony, that he has wilfully disobeyed the order. See also Nelson v. State, 2 Swan's R. 237.

The rule as stated seems to have been applied to cases in which the witness had wilfully disobeyed the order of the court. Cases may arise in which a party to the suit has been guilty of such gross misconduct as to amount to a fraud upon the court and the adverse party. Suppose a case in which the court has directed an examination of the witnesses out of the hearing of each other, and has required the parties respectively to produce their witnesses before the court in order that they may be warned by the judge and ordered to withdraw, and one of the parties wilfully and fraudulently withholds the name of a witness, and purposely suffers him to remain and hear the examination of the witnesses on the other side, would he be permitted, under such circumstances, to examine that witness? The question need not be answered, as the case here is not the case supposed. In the present case, the motion for the separation of the witnesses was made by the worthy attorney for the commonwealth. The witnesses on both sides were sworn and sent out of the court room. The witness Augustus Byers was present, but he was not then sworn and sent out, as were the other witnesses. He was in legal custody, and of course could not absent himself. But he might have been sent out in charge of an officer. This should have been done, if it was intended to examine him, for, of all the witnesses, it was most important to the prisoner that this witness, then in custody under a charge of larceny of the goods in question, should not have been permitted to hear the statements of the other witnesses, who were examined before he testified. His name appears at the foot of the indictment as one of the witnesses sworn and sent by the court to the grand jury to give evidence. It may be, that the attorney for the commonwealth was not aware of the presence of Byers in the court room while the other witnesses were under examination, or perhaps at the time he made the motion to send the witnesses out it was then his purpose not to examine him as a witness, and he may have considered it necessary to examine him after hearing the testimony of the other witnesses. Under the circumstances, we do not think the court erred in refusing to exclude this witness, his presence during the previous examination of the other witnesses being open to observation, and a matter to be weighed in determining the value of his testimony.

The only remaining assignment of error is the overruling of the...