Parsons v. Commonwealth

• Decision Date: 13 March 1930
• Citation: 152 S.E. 547
• Parties: PARSONS . v. COMMONWEALTH.
• Court: Virginia Supreme Court

152 S.E. 547

PARSONS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 13, 1930.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Northampton County.

W. Carroll Parsons was convicted of violating the State Prohibition Law, and he brings error.

Affirmed.

James E. Heath, of Norfolk, and Thomas H. Nottingham, of Eastville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

HOLT, J.

W. Carroll Parsons was convicted in the circuit court of Northampton county upon two counts of an indictment charging him with violations of the state Prohibition Law (Acts 1924, c. 407, as amended). This indictment contains three counts, namely: (1) The omnibus count; (2) a count charging the unlawful manufacture of distilled ardent spirits-; and (3) the omnibus count against ownership, possession, etc., of a still. Roland Foxwell was a joint defendant

The jury's verdict was: "We, the jury, find the defendant, Roland Foxwell, not guilty on any count of the within indictment; we find the defendant, W. Carroll Parsons, guilty upon both the first and second counts of the indictment and fix his punishment upon the first count at 3 months in the county jail and assess upon him a fine of $250.00, and upon the second count fix his punishment at 6 months in the county jail and assess upon him a fine of $250.00."

Upon this verdict the court entered the following judgment: "Thereupon it is considered by the court that the Commonwealth of Virginia recover against the defendant, W. Carroll Parsons, the sum of Five Hundred Dollars ($500.00), the aggregate of the two fines imposed by the verdict of the jury aforesaid, and its costs by it about its prosecution in this behalf expended, and that he be confined in the county jail for a term of nine (9) months, the aggregate time imposed by the verdict of the jury aforesaid; such term of imprisonment to commence with January 23, 1929."

The first assignment of error grows out of a refusal of the trial court to grant a con-tinuance. The petitioner makes this statement as the basis of that assignment: "Before the jury had been sworn, your petitioner and his codefendant, one Foxwell (who, as the verdict shows, was acquitted by the jury), moved the court to continue the trial of the case until the next term of the court on the ground that the wife and son of one Custis Winder, who had been duly subpoenaed, were unable, by reason of illness, to attend court. This motion the court overruled on the ground, to quote the language of the court, that the evidence which it was admitted that these witnesses would give 'was not of that importance to warrant a continuance.'" These witnesses would have testified that "neither of the defendants owned the still involved in this indictment but that the same was owned by the said Custis Winder."

At the conclusion of the evidence, in response to a request on behalf of the accused, the attorney for the commonwealth stated that he would ask for a conviction on the first and second counts, specifically for the transportation of ardent spirits and for its manufacture. There was no conviction asked for because of the ownership of the still, and none was returned. That matter was withdrawn, from the jury's consideration. Had the possession of the still been in issue, this evidence would have been very material, but it was not. Assuming that these absent witnesses would have testified as claimed, and that the jury would have believed their statements, there is still ample evidence in the record to sustain the verdict without in any wise contradicting them.

"A motion for a continuance is addressed to the sound, but not arbitrary, discretion of the court under all the circumstances of the case, and the appellate court will not reverse a judgment or decree because of the action of the lower court on such motion, unless the action was plainly erroneous. Abuse of discretion and prejudice to the complaining party are essential to reversal." 2 Michie's Dig. Va. & W. Va. Rep. p. 855, and many eases cited.

The second assignment goes to the refusal of the court to order a mistrial.

The petition states: "W. H. Currie was a witness at the trial, called on behalf of the Commonwealth. Currie was the manager of a D. P. store at Eastville. It was sought to prove by this witness that your petitioner had been buying sugar at his store in large quantities; that he suddenly stopped buying there; and that, when he stopped, he gave a reason for doing so to Currie which contained damaging admissions. Currie, however, when the question, by which it was sought to elicit this information, was asked him by the Commonwealth's attorney, denied that your petitioner had given any reason at all for ceasing to deal at the D. P. store. Thereupon, the attorney for the Commonwealth, in the pres ence of the jury, referring to the witness' answer, said to the court:

" 'Your Honor understands the circumstances. The witness has proven to testify differently from what he has told me.' "

The record contains a more detailed account of this incident, as appears from this excerpt:

"Q. Did he give any reason for stopping buying sugar from you?

"A. No, sir, only he said that he would have to do his dealing somewhere else.

"A. No, sir, he didn't.

"Mr. Quinton Nottingham: Your Honor understands the circumstances. The witness has proven to testify differently from what he has told me.

"Mr. Heath: We object to this in the presence of the jury. We object to the statement made by the Commonwealth's attorney in the presence of the jury and ask for a mistrial on the ground of that.

"The Court: Your request will be denied and the jury are instructed by the court not to pay any attention to any such statement as that.

"Mr. Heath: Will your Honor allow us an exception?

"The Court: Of course.

"Mr. Quinton Nottingham: May I take up the point in the absence of the jury?

"The Court: Of course.

"Note: The jury retired.

"The Court: It occurs to the court this is a needless interruption. The rule is fairly well known to the court. It obtains not only in criminal but in civil cases and every other kind of a case that when the subpoenaing and examining counsel is taken by surprise by the answers of a witness who doesn't testify to what he had reason to expect him to testify, then he may interrogate him and treat him as an adverse witness.

"Mr. Quinton Nottingham: What I expected to show is that Mr. Currie told me that Mr. Parsons said he would have to stop buying sugar from him unless he delivered it up in Reedtown for him. He did after that stop buying sugar from him.

"The Court: I can't understand, Mr. Nottingham, how that can possibly be such a vital question. You may proceed.

"Mr. Heath: I think your Honor's ruling is absolutely correct. He has got the right by proper questions to show he is taken by surprise, but we don't think he has the right to make the statement which he did make in the presence of the jury.

"The Court: The court will return your compliment and say in that statement you are absolutely right. It ought not to be made to the jury and the court has endeavored to annul or cancel whatsoever ill impressions orill results might have ensued from it. Mr. Nottingham, you have a right to cross-examine the witness.

"Mr. Nottingham: I will withdraw it."

If there is error here, it arises out of the conduct of the attorney for the commonwealth. All that the court did was to tell the jury to pay no attention to his objectionable statement, and in the course of the colloquy which followed counsel for the accused said: "I think your Honor's ruling is absolutely correct." Notwithstanding this commendation, complaint is now made because the court did not proceed to emphasize its direction to the jury.

A fair consideration of this incident shows that the attorney for the commonwealth was surprised by the answer of the witness, and was proceeding to secure from the court permission to cross-examine him. It may be conceded that he did not express himself tactfully. Certainly, if he were right in his premise, the liberty asked for should have been given. In affirmation of its ruling already made, the court, while the jury was still absent, said to counsel: "It ought not to be made to the jury and the court has endeavored to annul or cancel whatsoever ill impressions or ill results might ensue from it."

This apology appears to have been accepted at the time. The statement to the jury seems then to have been satisfactory. The question was withdrawn and the incident closed. It is true that the court refused to order a mistrial. There was no bias in this. The burden of error, if there was error, grows out of the conduct of the attorney for the commonwealth and not out of anything which the court did.

We have recently had occasion to consider the limitations and liberties of counsel in argument. Norfolk & W. Ry. Co. v. Eley, 152 Va. 773, 148 S. E. 678; Hardyman v. Commonwealth, 153 Va.—, 151 S. E. 286, decided January 16, 1930. Measured by the rules there laid down, which are strengthened by the statement of the court to the jury, we are of opinion that there was no error here.

As ancillary to this, although not assigned as independent error in any bill of exception, unless it be in the fifth hereafter to be considered, it is said that the presiding judge so frequently interfered during the taking of the testimony as to plainly indicate to the jury his belief in the guilt of the accused, and that such action on his part constitutes error, grave and prejudicial. In short, it is said that Parsons did not have that fair trial guaranteed to him as fundamental in our system of jurisprudence.

We sit as an appellate court, and it is neither our duty nor our privilege to search the record for error. When no constitutional question is involved, and when the error charged is not apparent upon the face of the record, the point must be preserved by a proper exception taken during the course of the trial and carried...