Humphreys v. Commonwealth
| Decision Date | 03 September 1947 |
| Citation | 43 S.E.2d 890,180 Va. 765 |
| Court | Virginia Supreme Court |
| Parties | HUMPHREYS. v. COMMONWEALTH. |
Error to Corporation Court of City of Bristol; Joseph L. Cantwell, Jr., Judge.
Ernest Martin Humphreys was convicted of making improper advances and exposing his person to a female under 18 years old and attempting to entice such female and other minor females into his truck by offering them money, and he brings error.
Reversed and remanded with direction.
Before HUDGINS, GREGORY, EG-GLESTON, SPRATLEY, and BUCHANAN, JJ.
George M. Warren and Dick B. Rouse, both of Bristol, for plaintiff in error.
Abram P. Staples, Atty. Gen, and W. Carrington Thompson, Asst. Atty. Gen, for the Commonwealth.
The defendant, Humphreys, was, on June 13, 1946, tried, convicted and sentenced to six months in jail and a fine of $100 by the substitute civil and police justice of the city of Bristol on a warrant making this charge:
He appealed to the corporation court and when the case came on for trial on September 13, 1946, the defendant asked to be tried by the court without a jury, in which motion the attorney for the Commonwealth joined, but the request was denied. The defendant also asked that the Commonwealth state the section of the Code under which he was to be tried, and that he be furnished a bill of particulars.
The Commonwealth's Attorney replied that he was prosecuting the defendant under section 1923 of the Code, 1 and tendered his bill of particulars setting forth three charges, as hereinafter stated. The defendant thereupon moved that the Commonwealth elect upon which charge it would prosecute, and made the objection that each charge was not set forth separately in thewarrant. The court replied that apparently the warrant covered only one offense, and that if the Commonwealth wanted to allege three offenses the warrant should be amended accordingly. Thereupon the warrant was amended to incorporate therein the bill of particulars, and the motion to require an election was denied. The defendant then stated, in reply to an inquiry from the court, that he had no further motion on the pleadings.
The warrant, as so amended, made the following charges against the defendant, referred to in the trial as "counts, " and so termed herein for convenience:
In the course of the trial, the court struck out the Commonwealth's evidence relating to count two, and instructed the jury to return a verdict of not guilty on that count, and at the conclusion of the evidence the jury returned two verdicts, finding the defendant guilty on the first and third counts, and fixing his punishment at six months in jail on each. Upon those verdicts he was sentenced to a term of twelve months in jail and to that judgment this writ of error was awarded.
The assignments of error assail the action of the court in refusing to set aside the verdicts as contrary to the law and evidence; in refusing to require an election; in permitting an amendment to the third count changing the date of the offense charged therein, and in refusing to declare a mistrial. In the conclusions we reach on the case it is not necessary to discuss the assignments in detail.
In his brief the Attorney General properly concedes that the evidence is not sufficient to support a conviction on the third count. As he says, that count does not even impute a criminal purpose to the defendant, and the most that can be said of the evidence concerning it is that the defendant watched a group of children at play and offered a nickel to one of them.
This leaves for consideration only the charge contained in the first count. The evidence for the Commonwealth on that charge comes from Cornelia Hagy and Mrs. Ralph Hagy, her mother. The father was not then at home. At the time of the alleged offense, Cornelia Hagy was a young girl twelve years old, the daughter of Mr. and Mrs. Ralph Hagy, and living with her parents in Bristol. On a Saturday the defendant and another man came to their home to repair a leak in the plumbing. The defendant went upstairs to flush the toilet, while the other man stayed downstairs to locate the leak. Mrs. Hagy had some money upstairs, and since she did not know the defendant, she sent Cornelia and her little brother upstairs to watch while the defendant was at work. The little brother got tired and went downstairs, leaving Cornelia and the defendant together in thebathroom. The defendant then opened up his trousers, exposed himself and started towards Cornelia, who ran downstairs to her mother. As she was telling her mother what had happened, the defendant overheard her, and immediately ran down the steps and out of the front door, got into his truck and drove away leaving the other man to finish the work and carry the tools back to town.
The warrant alleged, as shown, that this incident occurred in March, 1946. Cornelia Hagy testified it happened in the spring of 1946, but she could not fix a definite time. Mrs. Hagy did not know the exact time "but it was during a school session of last year and during real cold weather and it happened on Saturday."
Thereupon the Commonwealth's Attorney, over the objection of the defendant, was allowed to amend the warrant further by alleging that the offense occurred in November or December, 1945. This was not error. Code, 1942 (Michie), sees. 4989, 4875, 4876, and cases hereinafter cited.
Nor was it error to refuse to set aside the verdict on this first count because contrary to the law and the evidence. It is a violation of section 1923 of the Code, supra, on which the charge was based, to cause or encourage a child under eighteen to commit a misdemeanor, or to subject any such child to vicious or immoral influences. The evidence was sufficient to bring the acts of the defendant within the condemnation of the statute.
The serious question in the case is one of jurisdiction, not raised by the defendant in his brief, and apparently not called to the attention of the trial court, but presented to us by the Attorney General in his brief.
The record affirmatively shows that the offense charged in the first count was not presented to or dealt with in the court of the civil and police justice. The defendant was first charged with that offense by the amendment made by the corporation court after the trial on the appeal began in that court, and evidence was there first heard on that charge. It was a charge that had never been investigated and no evidence heard about it by the civil and police justice of the city of Bristol or his substitute.
The civil and police justice of Bristol is the judge of the juvenile and domestic relations court of that city, and is invested generally with the same jurisdiction and powers as are possessed by trial justices. Acts, Extra Session, 1942, ch. 7, p. 12.
Section 1923 of the Code, supra, under which the prosecution under the first count was had, is a part of chapter 78 of the Code entitled "Delinquent, Dependent and Destitute...
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