Mack v. Commonwealth

• Decision Date: 09 June 1941
• Docket Number: Record No. 2420.
• Citation: 177 Va. 921
• Parties: ALBERT MACK v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 921

177 Va. 921

ALBERT MACK v. COMMONWEALTH OF VIRGINIA.

Record No. 2420.

Supreme Court of Virginia, Wythebille.

June 9, 1941.

Present, All the Justices.

1. EXCEPTIONS, BILL OF — When Unnecessary — To Make Pleadings and Orders Part of Record. — No bill of exception is necessary to make the pleadings or orders of the trial court a part of the record on appeal.

2. EXCEPTIONS, BILL OF — Presentation to Judge — Failure to Present within Time — Circumstances Making Consideration of Motion to Dismiss Useless — Case at Bar. — In the instant case, a prosecution for robbery, on the first trial the jury was discharged by the court over the protest of accused, and on the second trial accused filed a plea of former jeopardy which stated the material facts. Three bills of exception, containing nothing except the pleas and orders, were presented to and signed by the trial judge. The attorney general moved to dismiss the writ of error on the ground that the bills of exception were not presented to the trial judge within the time required by law.

Held: That it would be useless for the Supreme Court of Appeals to consider the motion of the attorney general, since, even if it were sustained, the material facts would be before the court, as they were stated in the plea of former jeopardy.

3. JURY — Discharge — No General Rule as to What Constitutes a Necessity. — What facts and circumstances shall be considered as constituting a necessity for the discharge of a jury by the court cannot be reduced to any general rule.

4. JURY — Discharge — Power Is Discretionary. — The power to discharge a jury is a discretionary power, which the court, as in all other cases of judicial discretion, must exercise soundly, according to the circumstances of the case.

5. JURY — Discharge — Proper When Fair and Just Verdict Cannot Be Obtained. — The object of the law is to obtain a fair and just verdict, and whenever it shall appear to the court that the jury impanelled cannot render such a verdict, it ought to be discharged, and another jury impanelled.

6. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Unnecessary Nolle Prosequi without Consent of Accused. — After the jury has been sworn, if a nolle prosequi is entered and the indictment is dismissed without the consent of the accused, it amounts to an acquittal and bars further prosecution for the same crime unless there be manifest and urgent necessity for the entry of the nolle prosequi.

7. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Discharge of Jury — Where Manifest Necessity Exists. — A trial court may, in the exercise of a sound discretion, discharge a jury without the consent of the accused when there exists a manifest necessity therefor or the ends of public justice so require, and such discharge will not support a plea of former jeopardy.

8. APPEAL AND ERROR — Presumptions on Appeal — Presumption in Favor of Regularity of Judgments. — All presumptions exist in favor of the regularity of the judgments of courts of general jurisdiction, and he who asserts the contrary is required to overcome the presumption by record proof.

9. JURY — Trial by Jury — Criminal Cases — Right of Commonwealth. — While the Commonwealth, by the constitutional mandate of section 88 of the Virginia Constitution, has no appeal (with certain exceptions) in a criminal case, this denial of appeal does not mean that the Commonwealth is not entitled to a trial by jury free from all bias, prejudice or improper influences, and to a verdict based on legal testimony.

10. VERDICT — General Consideration — Necessity for Rendition by Impartial Jury. — The administration of justice demands that verdicts, criminal as well as civil, shall be rendered by impartial juries and shall be the result of honest deliberation, free from prejudice or bias.

11. AUTREFOIS, ACQUIT AND CONVICT — Waiver — Right May Be Waived Expressly or Impliedly. — A person on trial for a capital or lesser offense may waive his right to plead former jeopardy, and such waiver may be expressed or implied.

12. AUTREFOIS, ACQUIT AND CONVICT — Provisions of Law — Guaranty of Immunity Not a Restraint on Accused. — The constitutional guaranty of immunity from double jeopardy is a restraint on the officers of the court, not on the accused.

13. AUTREFOIS, ACQUIT AND CONVICT — What Constitutes Jeopardy — Discharge of Jury — Introduction of Improper Evidence by Accused's Counsel — Case at Bar. — In the instant case, accused and a companion were jointly accused of robbery, and, after electing to be tried separately, his companion was acquitted. On the first trial of accused, the victim of the robbery was asked whether he had testified in the trial of the accused's companion, and upon answering affirmatively was then asked: "And in spite of your testimony, he was acquitted?" to which he again replied in the affirmative. Immediately thereafter the attorney for the Commonwealth moved to discharge the jury on the ground that the above testimony was highly prejudicial to the rights of the Commonwealth. This motion was sustained over the protest of accused. On the second trial, accused pleaded former jeopardy, to which plea a demurrer of the Commonwealth was sustained, and accused was found guilty. Accused contended that he was in jeopardy before the first jury within the meaning of section 8 of the Constitution.

Held: That there was no merit in the contention of accused since his counsel had injected into the case evidence illegal and highly prejudicial to the Commonwealth which, as well as accused, was entitled to a verdict based on relevant evidence. It was not necessary to prove that the impertinent testimony actually influenced the minds of the jury.

14. EVIDENCE — Admissibility — Review — Trial Court in Better Position to Determine Effect of Illegal Evidence on Jury. — A trial court is in a much better position than an appellate court to determine whether the introduction of illegal testimony was reasonably calculated to prejudice the jury.

15. AUTREFOIS, ACQUIT AND CONVICT — Appeal and Error — Insufficient Facts to Overcome Presumption of Correctness of Trial Court's Ruling — Case at Bar. — In the instant case, accused and a companion were jointly accused of robbery, and, after electing to be tried separately, the companion was acquitted. On the first trial of accused the victim of the alleged robbery was asked whether he had testified in the trial of accused's companion, and upon answering affirmatively was then asked: "And in spite of your testimony, he was acquitted?" to which he again replied in the affirmative. Immediately thereafter the attorney for the Commonwealth moved to discharge the jury on the ground that the above testimony was highly prejudicial to the rights of the Commonwealth. This motion was sustained over the protest of accused. On the second trial accused pleaded former jeopardy to which plea a demurrer of the Commonwealth was sustained, and accused was found guilty. Accused contended that he was in jeopardy before the first jury within the meaning of section 8 of the Constitution.

Held: That the facts alleged in the plea of former jeopardy were not sufficient to overcome the presumption that the ruling of the trial court thereon was correct.

Error to a judgment of the Corporation Court of the city of Norfolk, No. 2. Hon. James U. Goode, judge presiding.

The opinion states the case.

Vivian L. Page, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Joseph L. Kelly, Jr., Assistant Attorney-General, for the Common-wealth.

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

Thomas Burton and Albert Mack were charged jointly with robbing Sam Lawhon. They elected to be tried separately. Thomas Burton was acquitted. The first jury sworn to try Albert Mack was discharged by the court over the protest of the accused. On the second trial Albert Mack pleaded former jeopardy, to which plea the Commonwealth demurred. The demurrer was sustained and, on the trial, he was found guilty and sentenced to confinement in the penitentiary for a period of eight years. This writ of error was granted to review the ruling of the trial court on the plea of former jeopardy.

1, 2 The record is very brief. It contains copies of the indictment, the pleas and the orders of the court. While no bill of exception was necessary to make the pleadings or the orders a part of the record, three bills of exception, containing nothing except the pleas and the orders, were presented to and signed by the trial judge. The Attorney General moved to dismiss the writ on the ground that the bills of exception were not presented to the trial judge within the time required by law. It is useless to consider this motion because, even if it were sustained, the material facts would be before this court, as they are stated in the plea of former jeopardy.

These material facts are that Thomas Burton, who elected to be tried separately, was acquitted; and that, after a jury was selected and sworn to try plaintiff in error, the Commonwealth called Sam Lawhon, the victim of the alleged robbery, as a witness in its behalf. The attorney for plaintiff in error, on cross examination of this witness, elicited the information contained in the following questions and answers:

"Q. Did you not testify in the case against Thomas Burton, who was jointly indicted with the accused, Albert Mack?

"A. I did.

"Q. And in spite of your testimony, he was acquitted?

"A. Yes."

Immediately thereafter the attorney for the Commonwealth moved to discharge the jury on the ground that the above testimony was highly prejudicial to the rights of the Commonwealth. This motion was sustained over protest of plaintiff in error.

Before a second jury was called, plaintiff in error filed his plea of former jeopardy, to which (as stated) a demurrer, filed on behalf of the Commonwealth, was sustained. Plaintiff in error was put upon his trial and convicted. It is...