McClain v. Commonwealth
| Decision Date | 07 September 1949 |
| Docket Number | Record No. 3559. |
| Citation | 189 Va. 847 |
| Court | Virginia Supreme Court |
| Parties | LOUIS McCLAIN, SOMETIMES KNOWN AS "LOUIE" MCCLAIN v. COMMONWEALTH OF VIRGINIA. |
Present, Gregory, Eggleston, Spratley, Buchanan, Staples and Miller, JJ.
(1) Venue — Laying and Proving in Criminal Proceedings — Evidence Held Sufficient to Establish Where Rape Took Place.
(2) Venue — Laying and Proving in Criminal Proceedings — Evidence May Be Direct or Circumstantial and Aided by Judicial Notice.
(3) Criminal Law — Trial — Information Secured by Court Out of Presence of Accused and Put in Evidence After Motion to Dismiss.
(4) Pardon, Probation and Parole — Probation — Failure to Object to Reference to Probation Officer at Trial.
(5) Pardon, Probation and Parole — Probation — Code Section 53-278.1 Held Valid Enactment under Section 50 of Virginia Constitution.
(6) Statutes — Singleness of Object or Subject — Code Section 53.278.1 Held Valid Enactment as Part of General Code Revision.
(7) Constitutional Law — Ex Post Facto Laws — Retrospective Criminal or Penal Laws.
(8) Constitutional Law — Ex Post Facto Laws — Not Applicable to Remedy or Mode of Procedure.
(9) Sentence and Punishment — When Evidence in Aggravation or Mitigation of Punishment Proper.
(10) Criminal Law — Evidence — Evidence to Prove Guilt Distinguished from Evidence to Assist Judge in Fixing Punishment.
(11) Pardon, Probation and Parole — Probation — Code Section 53-278.1 Held Not Ex Post Facto Because Procedural.
(12) Pardon, Probation and Parole — Probation — When Reference to Probation Officer to Be Made and Report Received.
1. Accused was tried by the court on a charge of having committed rape in a county, and contended that the Commonwealth had failed to prove venue, because the prosecutrix could not identify the place where the offense occurred beyond the fact that it was at a remote spot on a dirt road to which accused had driven her from a location in a city situated in the county. She was able to indicate the route through the city taken by accused and testified that if a certain street was the end of the city limits, the offense had taken place in the county. The trial court certified that in taking judicial notice of the city's corporate limits he examined an official map which showed that one of the city's boundaries ran diagonally through a street crossed by accused. Accused argued that there were turns he could have made after passing this street that would have taken them back into the city, but it was clear that they did not so turn, and the sheriff testified that no part of the dirt road indicated by the prosecutrix lay in the city. The trial court properly held that the evidence, coupled with judicial knowledge of the corporate limits, was sufficient to establish that the crime was committed in the county.
2. Under the facts of headnote 1, it was proper for the trial court to take notice of the official map of the city, and of the boundaries of the county, and to determine the question of venue on the basis of the facts proved and the fair inference therefrom in the light of that judicial knowledge, since evidence to prove venue may be direct or circumstantial and the facts proved may be aided by judicial notice of geographical facts that are matters of common knowledge, or shown by maps in common use.
3. Under the facts of headnote 1, accused contended that the trial court received and considered evidence after the close of the case and out of his presence, because after the Commonwealth had closed its case and he had moved for dismissal for failure to prove venue, the court consulted the map and then asked the sheriff to measure certain distances on the route travelled by accused. The court announced its actions on convening the following day and stated that this was all that had transpired since the parties left the courtroom on the previous day. The sheriff then testified as to his measurement in the presence of accused and his counsel. There was no error in this procedure, the order of introduction of testimony being for the determination of the trial court, whose exercise of judicial discretion will be controlled by the appellate court only in case of plain abuse and prejudice, and the court's act in looking at the map was not an act of hearing evidence but of applying judicial knowledge.
4. Under the facts of headnote 1, the trial court referred the case to a probation officer for presentence investigation pursuant to section 53-278.1 of the Code of Virginia, 1950. The statute is mandatory, and if applicable, failure to obey its mandate would be error. No objection or exception was taken to this procedure, and the report recommended against probation. Accused's assignment of error because of this reference might well be disposed of under Rule 22 of the Supreme Court of Appeals for absence of objection to the procedure. Accused, having taken his chance on a favorable report, ought not to be heard to object later if he considered it unfavorable.
5. Under the facts of headnote 4, accused erroneously contended that the enactment of section 53-278.1 violated both the letter and spirit of section 50 of the Virginia Constitution, which prescribes how laws shall be enacted, arguing that it was inserted in the Code without proper consideration of its contents and at a place where it would not normally be looked for. The Senate and House Journals failed to disclose that any constitutional requirement was disregarded in the enactment of the law and its place of insertion in the bill, and hence in the Code, was under Title 53, "Prisons and Other Methods of Correction", chapter 11, "Probation and Parole".
6. Under the facts of headnote 4, accused erroneously contended that the enactment of section 53-278.1 violated both the letter and spirit of section 52 of the Virginia Constitution, providing that no law shall embrace more than one object which shall be expressed in its title. Section 52 was not intended to apply to a general Code revision, but its purpose was to prevent the concealment of the real object of a particular statute when separate acts are passed. The adoption of a Code by general title is broad enough to cover any lawful enactment.
7. A retrospective criminal or penal law that does not deprive a person of some constitutional right to which he was entitled under the law at the time the offense was committed or alter his situation to his disadvantage is not ex post facto.
8. The prohibition against ex post facto laws has no application to changes which relate exclusively to the remedy or mode of procedure.
9. In the absence of statute, where the court must determine the punishment to be imposed, either on a finding of a jury or on a plea of guilty, it is correct practice to hear evidence in aggravation or mitigation of punishment.
10. In a trial, before verdict the issue is whether the defendant is guilty of the crime of which he is specifically accused, and the rules of evidence are designed to prevent the introduction of collateral issues and to prevent tribunals concerned solely with the issue of guilt of the particular offense from being influenced to convict for that offense by evidence that defendant has been guilty of other misconduct. But in the matter of sentence the task of the judge, within fixed statutory or constitutional limits, is to determine the type and extent of punishment after the issue of guilt has been determined, to the end that punishment should fit the offender and not merely the crime, and a sentencing judge can exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.
11. Under the facts of headnote 4, accused contended that section 53-278.1, which became effective July 1, 1948, would be an ex post facto law, forbidden by section 58 of the Virginia Constitution, if applied to his offense, which occurred and for which he was indicted in 1947. But his guilt was not denied, and at the conclusion of the evidence the only question involved was as to his punishment, and the trial court could, independently of statute, inquire into his record to assist it in determining the proper punishment to be imposed within the limits fixed by law, so that the effect of section 53-278.1 was to make mandatory a procedure which prior thereto had been permissive. Being a procedural statute, it did not violate the constitutional prohibition against ex post facto laws when applied to accused's case.
12. Under the facts of headnote 4, accused erroneously assigned as error the reference to a probation officer before he was found guilty. The time before sentence when such reference is made is not important. What is important is that accused shall be adjudged guilty only on evidence admissible on that issue, and before the court hears the probation officer's report, and the record in the case showed affirmatively that there was an adjudication of guilty before the report of the probation officer was presented to the court.
Error to a judgment of the Circuit Court of Augusta county. Hon. Floridus S. Crosby, judge presiding.
The opinion states the case.
Curry Carter, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General, and C. Champion Bowles, Assistant Attorney General, for the Commonwealth.
The defendant was indicted for the rape of a 14-year-old girl (Code, 1942 (Michie), section 4414). Upon a plea of not guilty he waived a jury, was tried by the court (Const. of Va., section 8; Code, section 4900, as amended; Acts, 1948, ch. 338, p. 634), convicted and sentenced to 16 years in the penitentiary.
The evidence for the Commonwealth was that on Saturday, July 26, 1947, the prosecutrix had been attending picture shows in Staunton. About five o'clock that afternoon she met defendant, a man 37 years old, on a street...
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