Powell v. Commonwealth

• Decision Date: 14 January 1937
• Citation: 189 S.E. 433
• Parties: POWELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

189 S.E. 433

POWELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1937.

Error to Corporation Court of Danville; Henry C. Leigh, Judge.

Gordon H. Powell was convicted of forgery, and he brings error.

Reversed and remanded for a retrial.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Carter & Williams and Margaret L. Carter, all of Danville, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., of Richmond, for the Commonwealth.

HOLT, Justice.

At the March term, 1936, of the corporation court of the city of Danville, Gordon H. Powell was indicted for forgery. He was charged with forging what purported to be a note of W. F. Knight for $1,000 of date December 5, 1935, and was charged also with uttering the same, knowing it tobe forged. This note was discounted by the Industrial Bank of Danville. At the same term a number of other indictments were returned against Powell, charging him with forging other notes, both before and after the Knight note was forged, among which was one of T. J. Wood for $1,500, one of E. W. Arnett for $750, and one of L. J. Feldman for $630. The Powell case was continued from time to time, and was finally set down for trial on the 21st of July, 1936. On the 18th of July, 1936, the attorney for the Commonwealth executed a certain paper addressed to Powell and to his counsel, which set out the Wood, the Arnett, and Feldman indictments, charged that these three notes were in the possession of Powell or counsel, and said that they would be required to produce them at the trial. This paper was duly served the 20th day of July, 1936.

The case came on for trial on July 21, 1936; Powell was arraigned and pleaded not guilty. It was heard in due course, and on the 4th day of August, 1936, a jury returned this verdict: "We, the jury, find the defendant guilty as charged in the indictment and fix the punishment at eight years in penitentiary." There was a motion to set it aside, which was overruled. Sentence was then pronounced.

During the opening statement of the attorney for the Commonwealth he said that evidence would be produced to show that, about the time Powell uttered the Knight note, he negotiated and uttered other forged notes, among them the Wood, Arnett, and Feldman notes, and that this evidence would be introduced for the purpose of showing guilty knowledge.

Powell's counsel in his opening statement said that some of the notes mentioned were not forged, that others came into Powell's possession honestly and were negotiated in good faith, and that as to others he could not say with exactness how he came by them. Counsel also stated that it was his intention to call Powell as a witness, when the opportunity presented itself.

For the Commonwealth, George S. Hughes, the assistant cashier of the Industrial Bank of Danville, was called. He identified the Powell note which was introduced in evidence. He also identified and introduced in evidence eight other original notes charged to have been forged, brought to his bank by Powell and discounted. He was then handed what purported to be typewritten copies of the Wood, Arnett, and Feldman notes. These copies he said were true copies, the originals of which had been discounted by his bank for Powell. No objection was offered to the introduction in evidence of these typewritten copies. Then followed this incident:

"Whereupon, the witness testified that the three typewritten copies handed him by the Attorney for the Commonwealth were true copies of notes purporting to be signed by T. J. Wood, E. W. Arnett, and L. J. Feldman, respectively, which original notes had been brought to his bank by the defendant, Gordon H. Powell, on or about the date appearing on the respective typewritten copies, and that said Gordon H. Powell negotiated said original notes and that the net proceeds of said notes were remitted to the Powell-Thompson Corporation.

"The witness further testified that on the originals, the defendant, Gordon H. Powell, wrote in the presence of the witness the names, 'Powell-Thompson Corporation' and 'Gordon H. Powell' in the same places that these names appeared on the copies. The defendant offered no objection to the introduction of the typewritten copies or to the evidence of the witness with respect thereto.

"Whereupon, the Court inquired of the Attorney for the Commonwealth as to why he was introducing the typewritten copies into the evidence rather than the original notes. Whereupon, the Attorney for the Commonwealth in the presence of the Jury stated that the original of each of the notes represented by the said typewritten copies had been delivered by the bank to the defendant and that he, the Attorney for the Commonwealth, had had a subpoena duces tecum served upon the defendant and his counsel requiring that said original notes be produced by the defendant or his counsel at this trial, and the Attorney for the Commonwealth turned to counsel for the defendant and asked him to produce the original notes mentioned in the subpoena duces tecum which has been hereinbefore set out in this bill of exceptions.

"The defendant by counsel objected to the action and statement of the Attorney for the Commonwealth in the presence of the jury as being improper and prejudicial conduct of the prosecuting officer and moved the Court to discharge a juror and order a mistrial for the reason that the action and statement of the Attorney for the Commonwealth in the presence of the jury taken in connection with the subpoena duces tecum served on the defendant and his coun-sel had been in effect a request and demand by the Attorney for the Commonwealth that the defendant should produce the originals of the Wood, Arnett and Feldman notes (typewritten copies of which had already been introduced in evidence) and therefore and thereby constituted a demand and request by the Attorney for the Commonwealth that the defendant should give evidence against himself in violation of his constitutional right to remain silent and in violation-of his constitutional right not to produce said original notes, all of which had been thus sharply brought to the attention of the Jury and had thereby placed the defendant in a position where he could not freely and voluntarily exercise his right and privilege to remain silent and his right and privilege not to produce the original notes requested and demanded of him because under such circumstances, his failure or refusal to testify and to produce said original notes would obviously prejudice his cause with the Jury trying his case.

"Whereupon, the Court without advising or informing the Jury as to the defendant's constitutional right to remain silent and to refuse to produce the papers called for and without informing or advising the Jury that they should not consider the statement of the Attorney for the Commonwealth made in their presence which has been heretofore set out, overruled the objection of the defendant and overruled the defendant's motion to discharge a juror and order a mistrial, to which action of the Court, the defendant by counsel excepted."

The witness Hughes said that these three notes had been delivered by the bank to Powell on February 29, 1936, after Powell had paid them. They were then handed to Hughes by the defendant's counsel and identified. Their makers were examined and declared them to be forgery.

Powell took the stand and said that he had taken them to the bank and had there negotiated them; that the net proceeds of each were remitted by the bank to the Powell-Thompson Corporation; and that he had personally written the name of the corporation and his own name on them wherever they appeared. He said that he had not forged these signatures and had no knowledge of the forgeries when they were negotiated.

It is not contended that the evidence is insufficient to support the judgment, but it is contended that the constitutional right of the prisoner had not been waived and has been violated, and upon that issue this case turns.

The Const.U.S. Amend. 5 declares that no person "shall be compelled in any Criminal Case to be a witness against himself." The Constitution of Virginia, § 8, contains a like provision: "He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers; nor be compelled in any criminal proceeding to give evidence against himself." While by Code, § 4778, the accused is given the right to testify in his own behalf, this is a privilege extended to him but not a burden imposed. The liberty of choice is with him; he may sit silent without comment and from his conduct no inference is to be drawn. Blair v. Commonwealth (June 11, 1936) 166 Va.----, 185 S.E. 900, 901.

An interesting discussion of the nature of this immunity, its origin and extent, will be found in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. In Virginia it was last under review in the Blair Case. There the defendant was charged with an attempt to rape. After the evidence was all in, after the jury had been instructed and after argument had been completed, one of the jurymen asked the court "if the jury could have the benefit of the defendant's testimony." He was then offered as a witness by his counsel, examined and re-examined. This, we held, violated his constitutional rights. The Attorney General contended that they were waived when he took the stand. Had he voluntarily done so, that would have been true. The immunity given does not avail when the accused offers himself voluntarily as a witness (Code, § 4778), nor can it avail if immunity coextensive with the constitutional privilege of silence is guaranteed to him by statute. Flanary's Case, 113 Va. 775, 75 S. E. 289.

And in the Flanary Case it was said that these constitutional provisions should be liberally construed else the intent thereof would be unavailing. Moreover, "the waiver of such a privilege as we are now...