Joyner v. Com., 3831

• Decision Date: 18 June 1951
• Docket Number: No. 3831,3831
• Citation: 192 Va. 471,65 S.E.2d 555
• Parties: FLOYD JOYNER, JR. v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 555

65 S.E.2d 555

192 Va. 471

FLOYD JOYNER, JR. v. COMMONWEALTH OF VIRGINIA.

Record No. 3831.

Supreme Court of Appeals of Virginia

June 18, 1951.

M. S. McClung, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: WHITTLE

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

This case is before us upon a writ of error and supersedeas to a judgment rendered in the Circuit Court of Roanoke county on September 19, 1950, wherein Floyd Joyner, Jr., herein called the defendant, was sentenced to death, pursuant to the jury's verdict, finding him guilty of murder in the first degree.

The defendant, a trusty in a convict road camp, being without funds to employ counsel, had counsel assigned him by the court.

Two assignments of error are relied upon by the defendant, as follows:

'(1) The trial court erred in refusing to declare a mistrial in response to the motion of the accused, by counsel, when the attorney for the Commonwealth commented upon the failure of the accused to testify, which action of the attorney for the Commonwealth was a direct violation of the mandate of statute 19-238 of the Code,' and

'(2) The court erred in refusing to grant the accused a new trial on the grounds of after-discovered evidence.'

The second assignment of error cannot be considered by this court. The judgment here complained of was entered on September 19, 1950. The trial court took no further action in the case until November 2, 1950, at which time a bill of exceptions was signed. This bill of exceptions states that on November 2, 1950, counsel for the defendant moved the court to grant the accused a new trial on the grounds of after-discovered evidence and that the court overruled the motion. The judgment entered on September 19, 1950 became final at the end of the term at which it was entered or at the expiration of fifteen days, whichever first happened, and, admittedly, here both contingencies had happened, and the trial court had no further jurisdiction over the case. See section 17-31, Code, 1950; Allen v. Commonwealth, 114 Va. 826, 77 S.E. 66; Harley v. Commonwealth, 131 Va. 664, 108 S.E. 648, and Bridges v. Commonwealth, 190 Va. 691, 58 S.E. (2d) 8.

The bill of exceptions dealing with the first assignment of error reads as follows:

'BE IT REMEMBERED THAT, upon the trial of this case in the Circuit Court of Roanoke county, Virginia, on September 18th and 19th, 1950, the defendant relying upon his constitutional and statutory rights, did not take the witness stand in his own behalf. There being no witnesses for the defendant, the defendant, by his attorney, at the conclusion of the Commonwealth's evidence, rested his case.

'Whereupon, instructions for both the Commonwealth and the defendant were presented to the Court and after some discussion agreed upon in chambers.

'Whereupon, all parties returned to the court room for argument. As the Commonwealth's Attorney, E. W. Chelf, concluded his opening argument, he made the reference, hereinafter referred to, to the failure of the accused to testify. The trial of this case not being reported, the manner and the happening of this event was agreed upon by the Commonwealth's Attorney and counsel for the defendant, in the presence of the court and stipulated and reduced to writing by a stenographer, who was called into the court's chambers, for that purpose, as follows:

''The closing remarks of the attorney for the Commonwealth, E. W. Chelf, in his opening argument, were that until Mr. McClung, counsel for the accused, made his argument, he, the Commonwealth's Attorney, did not know what the defense was, as the accused had not testified; and thereupon, the Commonwealth's Attorney took his seat, and Mr. McClung, counsel for the accused, began his opening argument, in which he stated that throughout the trial, he thought that the accused had had a fair trial, and was proceeding with his argument when the judge of the court stopped Mr. McClung's argument, and called the attorney for the Commonwealth, and counsel for the accused, and the accused, into chambers, and called their attention to this remark of the Commonwealth's Attorney. After some discussion, in which the attorney for the Commonwealth stated that the remark was not made with any intention to reflect upon the guilt of the defendant on account of his failure to testify, nor was it made in any wise with the intention of prejudicing the rights of the defendant, but merely for the purpose of telling the jury that he had nothing further to say until after he had heard from the attorney for the defendant. Counsel for the accused moved the court to declare a mistrial of the case on the grounds that the remarks made by the attorney for the Commonwealth were, or could be, prejudicial to the accused in the minds of the jury, which motion the court overruled, to which action of the court in overruling said motion, the accused, by his counsel, excepted on the grounds heretofore assigned; and thereupon the court had the following instruction to the jury prepared:

"The court instructs the jury that the failure of the accused to testify creates no presumption against him; and in considering his guilt or innocence, his failure to testify is not a circumstance which the jury is entitled to consider.'

'Then the court, the accused, and the attorneys returned to the court room and the court orally instructed the jury as to the right of the accused not to take the witness stand and told them that they were not to consider any remarks made by the Commonwealth's Attorney, as to the failure of the accused to testify.

'And thereupon the court told the jury, 'Gentlemen, I want to give you another instruction, and I want to be sure that you understand it, and that you will follow it in considering this case'; and thereupon the court read to the jury the instruction hereinabove referred to. Then the court asked the jury, 'Gentlemen, do all of you understand that instruction?', and each juror answered that he did. Then the court asked, 'In considering this case under your oath to give the accused a fair trial, will you follow that instruction?', and each juror answered that he would. The court then instructed them, 'Gentlemen, I instruct you to disregard any remarks with reference to the failure of the accused to testify. Will you follow that instruction in your consideration of this case?', and each juror answered that he would.

'And thereupon the court attached the written instruction to the other instructions, and the case proceeded with the argument of Mr. McClung.

'BE IT REMEMBERED THAT, upon the return of the jury to the court room to deliver the verdict and the verdict being 'guilty and the punishment being fixed at death' the court then sentenced the prisoner and set his execution date for December 4, 1950.

'Whereupon, counsel for the accused moved the court to set aside the verdict, as being contrary to the law and evidence and particularly upon the ground that the remarks made by the Commonwealth's attorney in his argument were extremely prejudicial to the rights of the accused, such remarks...