Powell v. Commonwealth

• Decision Date: 14 January 1937
• Citation: 167 Va. 558
• Parties: GORDON H. POWELL COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 558

167 Va. 558

GORDON H. POWELL COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

January 14, 1937.

Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.

1. WITNESSES — Privilege of Refusing to Testify — Right to Remain Silent without Comment or Inference Therefrom. — While by section 4778 of the Code of 1936, 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.

2. WITNESSES — Privilege of Refusing to Testify — When Privilege Does Not Avail. — the immunity from giving evidence against himself, given an accused by the Constitution, does not avail when the accused offers himself voluntarily as a witness, nor can it avail if immunity coextensive with the constitutional privilege of silence is guaranteed to him by statute.

3. WITNESSES — Privilege of Refusing to Testify — Constitutional Provisions to be Liberally Construed. — The constitutional provisions that an accused shall not be required to give evidence against himself should be liberally construed.

4. WITNESSES — Privilege of Refusing to Testify — Waiver of Privilege — Must be Made Understandingly and Willingly. — The waiver of the privilege of the accused not to give evidence against himself must always be made understandingly and willingly, and generally after being fully warned by the court.

5. CRIMINAL LAW — Presumptions and Burden of Proof — Burden of Explaining Away Incriminating Evidence — Failure Subject to Comment. — Always there rests upon the accused the burden of explaining away incriminating evidence, where a prima facie case is made out, and, if he fails, such failure may be commented upon in argument but not his failure to testify.

6. WITNESSES — Privilege of Refusing to Testify — Waiver of Privilege — Witness Forced to Testify for Fear of Adverse Inferences. — Whenever the accused, because of some incident in the trial and through no fault of his, is forced to testify for fear that adverse inferences might be drawn from his failure, then he has not volunteered as a witness and has not waived his rights.

7. BEST AND SECONDARY EVIDENCE — Forgery and Counterfeiting — Waiver of Objections — Case at Bar. — In the instant case, a prosecution for forgery, the Commonwealth's attorney in his opening statement said that evidence that accused had uttered other forged notes would be introduced for the purpose of showing guilty knowledge, and during the trial introduced typewritten copies of three notes charged to have been forged by accused, to which no objection was offered.

Held: That it was not necessary for the Commonwealth's attorney to do anything by way of compliance with the best evidence rule.

8. WITNESSES — Privilege of Refusing to Testify — Demanding of Accused Papers Charged to Have Been Forged by Him — Case at Bar. — In the instant case, a prosecution for forgery, the Commonwealth introduced copies of three notes charged to have been forged by accused and upon inquiry by the court as to why the originals had not been introduced, the Commonwealth's attorney stated that they were in the possession of accused and that a subpoena duces tecum had been served upon him, and thereupon asked counsel for accused to produce them.

Held: Error. To demand from the accused a document from which his guilt may be inferred is scarcely less harmful than to place him upon the stand and ask him if he is guilty.

9. WITNESSES — Privilege of Refusing to Testify — Waiver of Privilege — Statement by Council for Accused that Latter Would Be Called as Witness — Case at Bar. — In the instant case, a prosecution for forgery, the Commonwealth introduced copies of three notes charged to have been forged by accused and upon inquiry by the court as to why the originals had not been introduced, the Commonwealth's attorney stated that they were in the possession of accused and that a subpoena duces tecum had been served upon him, and thereupon asked counsel for accused to produce them. The Commonwealth contended that accused had waived his rights, since his counsel in his opening statement indicated his purpose to call accused as a witness.

Held: That had accused been called as a witness, he might then have been questioned as to the whereabouts of the notes, and might have been told to produce them, but the time to do this was after he had been called.

10. WITNESSES — Privilege of Refusing to Testify — Waiver of Privilege — Cannot Be Waived for Accused by Another. — The privilege of the accused not to give evidence against himself is highly personal; if the witness wishes to answer, no one can object, and by the same token no one can waive for him this right.

Error to a judgment of the Corporation Court of the city of Danville. Hon. Henry C. Leigh, judge presiding.

The opinion states the case.

Carter & Williams and Margaret L. Carter, for the plaintiff in error.

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

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

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 to be 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 day 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 in 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...