Humphreys v. Commonwealth

• Decision Date: 03 September 1947
• Docket Number: Record No. 3238.
• Citation: 186 Va. 765
• Court: Virginia Supreme Court
• Parties: ERNEST MARTIN HUMPHREYS v. COMMONWEALTH OF VIRGINIA.

Page 765

186 Va. 765

ERNEST MARTIN HUMPHREYS v. COMMONWEALTH OF VIRGINIA.

Record No. 3238.

Supreme Court of Virginia, Staunton.

September 3, 1947.

Present, Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.

1. WARRANTS — Amendment — Amendment Changing Date of Offense after Appeal to Corporation Court — Case at Bar. — In the instant case, a prosecution which originated before a civil and police justice on a warrant charging accused with contributing to the delinquency of a minor female by endeavoring to entice her into his car for immoral purposes, on appeal to the corporation court the warrant was amended so as to charge accused with making improper advances and exposing his person to the minor female and with two other offenses. After the minor and her mother had testified, the Commonwealth's attorney, over the objection of accused, was allowed to amend the warrant further by changing the date on which it was alleged that the offense occurred.

Held: That it was not error to allow the amendment changing the date.

2. INFANTS — Offenses Relating to Infants — Code Section 1923 — Sufficiency of Evidence — Case at Bar. — In the instant case, a prosecution which originated before a civil and police justice, who was also juvenile and domestic relations judge, on a warrant charging accused with contributing to the delinquency of a minor female by endeavoring to entice her into his car for immoral purposes, on appeal to the corporation court the warrant was amended so as to charge accused with making improper advances and exposing his person to the minor female and with two other offenses. The minor and her mother testified that the offense occurred at a time when accused was working at the child's home and when she was alone with him upstairs. As the child was telling her mother of the occurrence accused overheard her and immediately left the house and drove away.

Held: That the evidence was sufficient to bring the acts of accused within the condemnation of section 1923 of the Code of 1942 (Michie), which provides for the punishment of anyone who shall cause or encourage a child under eighteen to commit a misdemeanor, or who shall subject any such child to vicious or immoral influences.

3. INFANTS — Offenses Relating to Infants — Code Section 1923 — Corporation Court without Original Jurisdiction — Case at Bar. — In the instant case, a prosecution which originated before a civil and police justice, who was also juvenile and domestic relations judge, on a warrant charging accused with contribution to the delinquency of a minor female by endeavoring to entice her into his car for immoral purposes, on appeal to the corporation court the warrant was amended so as to charge accused with making improper advances and exposing his person to the minor female, in violation of section 1923 of the Code of 1942 (Michie).

Held: That the corporation court did not have original jurisdiction to try accused on the charge made by the amended warrant.

4. JURISDICTION — Waiver — Want of Jurisdiction of Subject Matter. — Want of jurisdiction of the subject matter cannot be waived.

5. JURISDICTION — Raising Objections — Want of Jurisdiction of Subject Matter. — Want of jurisdiction of the subject matter may be raised at any time, in any manner, before any court, or by the court itself.

6. JURISDICTION — Essential to Valid Judgment or Decree — Lack of Potential Jurisdiction. — Where potential jurisdiction is lacking in a particular case, any judgment or decree rendered therein is coram non judice, and void for all purposes.

7. JURISDICTION — How Acquired — Right to Object for Want of It. — Jurisdiction of the subject matter can only be acquired by virtue of the Constitution or of some statute. Neither the consent of the parties, nor waiver, nor acquiescence can confer it. Nor can the right to object for a want of it be lost by acquiescence, neglect, estoppel or in any other manner, and the want of such jurisdiction of the trial court will be noticed by the Supreme Court of Appeals ex mero motu.

8. INFANTS — Offenses Relating to Infants — Effect of Amending Warrant in Corporation Court to Make New Charge — Case at Bar. — In the instant case, a prosecution which originated before a civil and police justice, who was also juvenile and domestic relations judge, on a warrant charging accused with contributing to the delinquency of a minor female by endeavoring to entice her into his car for immoral purposes, on appeal to the corporation court the warrant was amended so as to charge accused with making improper advances and exposing his person to the minor female, in violation of section 1923 of the Code of 1942 (Michie).

Held: That the corporation court had the right to amend the warrant to make a new charge, or to issue a warrant to cover that charge, but it had no jurisdiction to try accused originally upon the new charge, and could then only remand the case for trial upon that charge to the juvenile and domestic relations court (civil and police justice) to which the statutes have given exclusive original jurisdiction.

Error to a judgment of the Corporation Court of the city of Bristol. Hon. Joseph L. Cantwell, Jr., judge presiding.

The opinion states the case.

George M. Warren and Dick B. Rouse, for the plaintiff in error.

Abram P. Staples, Attorney General, and W. Carrington Thompson, Assistant Attorney General, for the Commonwealth.

BUCHANAN, J., delivered the opinion of the court.

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:

"Whereas, Ralph Hagy has this day made complaint and information on oath before me, Jno. E. Baumgardner, Clerk Civil and Police Court of the said City, that Ernest Martin Humphreys in the said City did on within the year 1946: Unlawfully endeavor to entice minor female into his car for immoral purposes and did molest and make improper advance to minor female — Contributing to delinquency of minor female."

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 the warrant. 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:

Count 1

"On the . . . day of March, 1946, he made improper advances and exposed his person to Cornelia Hagy, a minor female female under 18 years of age, at her home in Bristol, Virginia."

Count 2

"On the . . . day of April, 1946, he made improper advances to and exposed his person to Shirley Lane and Tootsie Odum, minor females under 18 years of age, at the intersection of Commonwealth Avenue and Fairmount Avenue in Bristol, Virginia, while he was parked in a truck."

Count 3

"On the 13th day of June, 1946, he attempted to entice Cornelia Hagy and other minor females into his truck by offering them money. At the same place and at the same time he attempted to entice Caroline Whitson, a minor female under 18 years of age, into his truck by offering her money."

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...