Ley v. Commonwealth

• Decision Date: 15 March 1900
• Citation: 98 Va. 803,35 S.E. 452
• Parties: WAD LEY v. COMMONWEALTH.
• Court: Virginia Supreme Court

35 S.E. 452

98 Va. 803

WAD LEY

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 15, 1900.

INDICTMENT — QUASHING — IMPROPER EVIDENCE BEFORE GRAND JURY—INJUNCTION OF FEDERAL COURT PREVENTING TRIAL OF PRISONER—DISCHARGE OF PRISONER NOT TRIED WITHIN FOUR TERMS AFTER INDICTMENT—EVIDENCE—SHOWING WITNESS' PREJUDICE—INSTRUCTIONS—HARMLESS ERROR.

1.An indictment could not be quashed on the ground that improper evidence was given before the grand jury.

2.One indicted for embezzlement obtained an injunction from a federal court preventing the state from proceeding with his trial, and prohibiting certain records from being used against him, and by reason of delay so occasioned there were four regular terms of court after the indictment was found without defendant's trial.A statute of the state provided that one not brought to trial within four regular terms of court after indictment should be forever discharged from custody, but enumerated several excuses for failure to so try an accused, which would disentitle him to discharge.Held, that defendant could not be discharged because an injunction by a federal court preventing trial was not one of the excuses enumerated in the statute, since the statute did not mean by the enumeration of exceptions to exclude others in pari ratione.

3.On the trial for embezzlement, where defendant's intent in appropriating certain bonds and substituting others in their place was a question, it was error to allow a witness to state his opinion as to the value of the bonds on information derived from correspondence with others.

4.That on a prosecution for embezzlement it was impossible to prove an inculpatory fact by lawful evidence was not a foundation on which to rest the introduction of improper evidence.

5.On the trial for embezzlement, a witness for the commonwealth was asked if he had not made himself busy before the indictment was found, that he might, by its use, compel the accused to pay debts represented by witness against the company, of which accused was president, and if he had not made threats that he would have the indictment made, and assist in the prosecution of it, unless accused would pay witness 50 per cent, on claims he had against the company.Held, that it was error to sustain objections to the questions, since the jury should have been allowed to decide how far, if at all, witness' testimony was colored by prejudice against accused.

6.The court instructed the jury they should find defendant guilty if he wrongfully and fraudulently used, disposed of, concealed, or embezzled any property of a corporation "with intent to wrong and defraud said company, and thereby render it unable to meet its obligations."Held, that the instruction was not prejudicial to accused.

7.On trial for embezzlement, if there were evidence that accused acted under a bona fide claim of right in appropriating certain property of a corporation, it was error, after charging that the jury must find accused appropriated the property with a criminal intent, to strike from the instruction as requested the words, "and not under an honest belief that he had a bona fide claim of right to do so."

Appeal from Wythe countycourt.H. G. Wadley was convicted of embezzlement, and he appeals.Reversed.

J. C. Wysor, J. C. Blair, and White & Buchanan, for appellant.

A. J. Montague, Atty. Gen., for the Commonwealth.

HARRISON, J.The plaintiff in error was tried and convicted in the county court of Wythe for embezzlement of the assets of the Wytheville Insurance & Banking Company.

During the trial numerous exceptions were taken to the rulings of the court which we are now asked to review.

Before his arraignment the prisoner filed two pleas setting forth that the indictment against him was found upon illegal and inadmissible evidence, and praying that the same might, for that reason, be quashed.This motion was properly overruled.

It is the policy of the law, in the interest of justice, that this preliminary hearing should be conducted with closed doors.This secrecy is not only consistent with, but essential to, the nature of the institution.The sufficiency of the proof cannot be inquired into to invalidate an indictment found by a lawfully constituted grand jury.The presumption is that every indictment is found upon proper evidence.If anything improper is given in evidence before a grand jury, it can be corrected on the trial before the petit jury.

Grand juries are not generally selected on account of their legal acquirements, and doubtless often act upon evidence not strictly legal.If, however, the courts are to inquire into their proceedings, few indictments would come to trial without this preliminary.1 Bish.NewCr. Proc. § 872, par. 5;State v. Fasset, 16 Conn. 457;State v. Beebe, 17 Minn. 241(Gil. 218);State v. Dayton, 28 N. J. Law, 49;Turk v. State, 7 Ohio, 240, pt 2;Creek v State, 24 Ind. 151;State v. Logan, 1 Nev. 509.

Exception was taken to the action of the county court in refusing to discharge the prisoner forever from prosecution upon the ground that there had been four regular terms of the court, after the indictment was found, without a trial.There was no error in this ruling.It appears that the prisoner resorted to the novel proceeding of obtaining from the federal court an injunction restraining the law officer of the state from proceeding with his trial, and prohibiting the use of certain books and records as evidence on behalf of the commonwealth, and by this means caused the delay that he now seeks to take advantage of.The contention is that the statute does not enumerate an injunction by a federal court as one of the causes of delay disentitling the prisoner to his discharge.It may fairly be presumed that the legislature never contemplated such a cause of delay, and it would defeat, rather than carry out, the purpose of the enactment to give its language the narrow and technical meaning contended for.The sole object was to insure a speedy trial: "The statute never meant, by its enumeration of exceptions, or excuses for failure to try, to exclude others of a similar nature or in pari ratione, but only to enact, if the commonwealth was in default for three terms without any of the excuses for the failure enumerated in the statute, or such like excuses, fairly implieable by the court from the reason and spirit of the law, the prisoner should be entitled to his discharge."Com. v. Adcock, 8 Grat. 661.

During the progress of the trial the commonwealth introduced A. A. Campbell, and asked him the following question: "From your acquaintance with the suit pending in the circuit court of the United States for the Western district of Virginia, what was the value of the assets the company had when the company went into the hands of the receiver?"To this question the prisoner excepted, but the court overruled the exception, and allowed the witness to answer the same.

It is urged upon us that the ruling of the court was erroneous, because, if there was anything in the record referred to, properly admissible in evidence before the jury, the record itself was the best evidence, and should have been introduced, and not the opinion of a witness as to what the record proved.Conceding that this position is sound, it is perhaps doubtful whether or not it is properly presented for our decision, and, as substantially the same question arises upon another bill of exceptions, we forbear to express any opinion upon it.

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