Powell v. Commonwealth

• Citation: 28 S.E.2d 687, 182 Va. 327
• Case Date: January 24, 1944
• Court: Supreme Court of Virginia

182 Va. 327

28 S.E.2d 687

POWELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 24, 1944.

Error to Hustings Court of Roanoke; James L. Almond, Jr., Judge.

Lawrence Powell was convicted of rape, and he brings error.

Affirmed.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Walter E. Rogers, Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

On December 21, 1939, the plaintiff in error was convicted of rape by a jury in the Hustings Court of the city of Roanoke, and his sentence fixed at five years in the penitentiary. There was a motion for a new trial, based on various objections made during the trial and on after-discovered evidence, which was overruled on March 15, 1941, when judgment was entered on the verdict. On June 8, 1942, we affirmed that judgment. Powell v. Commonwealth, 179 Va. 703, 20 S.E.2d 536. Shortly thereafter Powell was conveyed to the State Penitentiary at Richmond to undergo the term of punishment imposed upon him.

In January, 1943, the prisoner filed in this court a petition for a writ of habeas corpus against the superintendent of the penitentiary, claiming that due to certain alleged irregularities in his trial in the lower court (not pertinent or kin to those involved in the present controversy), his confinement was unlawful. Without written opinion we denied the petition.

In June, 1943, Powell filed in the District Court of the United States for the Eastern District of Virginia, at Richmond, a petition for a writ of habeas corpus against the superintendent of the penitentiary, alleging that the judgment of conviction under which the petitioner was being held was illegal and void for the reason that he was not personally present when sentence was pronounced upon him. This point had not been raised before or passed upon by us on the former appeal.

The District Court awarded the writ and commanded the superintendent of the penitentiary to produce the body of the prisoner before the court on July 7, 1943, in order that the legality of his imprisonment might be inquired into and determined.

While that habeas corpus proceeding was pending in the United States District Court, the prisoner was brought before the Hustings Court of the city of Roanoke on June 28, 1943, in order that he be resentenced. He moved the court to set aside the verdict of the jury and grant him a new trial on the ground, then raised for the first time, that, although the Commonwealth had asked for the death penalty, upon the adjournment of court on December 20, 1939, after the evidence had been partly heard, the jury were ordered to appear in court the next day at 9:30 o'clock a. m., and in the meanwhile were not kept together and placed in the custody of a proper officer, but were permitted to go to their respective homes and spend the night. This motion was overruled and an exception duly taken.

The plaintiff in error further objected to the pronouncement of judgment against him on June 28, 1943, on the ground that the court was without authority to do so because of the lapse of time since any valid order had been entered in the record of his trial. This objection was likewise overruled and an exception taken.

Thereupon the court entered judgment upon the verdict and ordered that the accused be confined in the State Penitentiary at Richmond for a term of five years, less such time as he had been confined in jail and in the State Penitentiary, pursuant to the order of the court theretofore entered on March 15, 1941.

To review the validity of the judgment thus entered on June 28, 1943, the present writ of error has been granted. In the meantime the habeas corpus proceeding instituted by the plaintiff in error in the United States District Court was dismissed, without prejudice, upon the joint petition of the Attorney General of Virginia, representing the superintendent of the State Penitentiary, and the attorney for the prisoner.

The first assignment of error is to the action of the lower court in refusing to set aside the verdict of the jury because of the separation of the jury during the trial. According to the record on the first appeal the incident occurred in this manner: After the conclusion of the Commonwealth's evidence, Mr. Scott, of counsel for the accused, out of the presence of the jury, addressed the court in these words: "Your Honor, I have talked to Mr. Smith, ¹ and have also talked to the boy (the accused), and as far as we are concerned, if we don't finish this case today, we will be glad to have the jurymen go home rather than be confined together." The court replied: "That's fine. I appreciate that."

A motion of the accused to strike the Commonwealth's evidence was then argued and overruled. Several witnesses for the defense were heard, but before the evidence for the defense was concluded the court thus addressed the jury:

"Gentlemen, a legal question has been raised, and I want to investigate it in order to endeavor to rule properly on it. I see no reason, therefore, to keep you here until I can investigate it. In cases of this type, the law requires that the jury be kept together. For your benefit, however, I have had a conference with the Commonwealth's attorney and his assistant, and Mr. Scott and Mr. Smith representing the defendant, and they are willing to agree not to keep the jury together regardless of the verdict of this jury and raise no question about it one way or another. Both sides have agreed to waive the law in this case for your convenience. The law does make it my duty to impress upon you this: That you are not to discuss this case with anyone. Don't discuss it in your home. I will ask you not to read anything in the newspapers--probably there will not be anything in it touching this case anyway. Nobody will intentionally do it, but should any person thoughtlessly ask you some question about this case, let me know who the person is; and don't discuss it. Court is adjourned until tomorrow morning at nine thirty."

The incident is further clarified by the certificate of exception certifying the record on the present appeal, wherein it is stated that the jury "were not placed in the custody of an officer, but permitted to go to their respective homes and spend the night, which action of the court in permitting the jury to separate was taken, as shown by the record, at the instance and request of the defendant, Lawrence Powell, through his attorney, and with the consent of the attorney for the Commonwealth."

It thus appears that the separation of the jury was with the consent of counsel for the plaintiff in error, the attorney for the Com monwealth, and the court, arrived at out of the presence of the jury, and at the instance of counsel for the plaintiff in error. The Attorney General contends that under such circumstances the plaintiff in error waived the right to have the jury kept together in the custody of a proper officer. The plaintiff in error, on the other hand, contends that his right to have the jury kept together is one which he could not waive even by an express consent thereto.

The ancient rule of the English law was that in all cases, civil as well as criminal, a jury once sworn and charged with a cause could not be discharged or permitted to separate before they had agreed on their verdict. State v. Miller, 18 N.C. 500.

In Virginia, except as it is modified by statute, the common-law practice which requires that the jury be kept together during the entire trial still prevails in felony cases. Robinson v. Commonwealth, 182 Va. 42, 28 S.E.2d 10.

Code, § 4902 (as amended by Acts 1922, ch. 325, p. 545; Acts 1928, ch. 430, p. 1113; Acts 1930, ch. 233, p. 1623), provides: "In any case of a felony where the punishment cannot be death, the jury cannot be kept together unless the court otherwise directs."

See also, Acts 1936, ch. 133, p. 252, Michie's Code of 1942, § 4902a, dealing with a partial separation of the jury.

In the recent case of Robinson v. Commonwealth, supra, we held that under Code, § 4902, as amended, the jury must be kept together in the trial of a felony case where the punishment may be death, thus reaffirming the principles laid down in Barnes v. Commonwealth, 92 Va. 794, 23 S.E. 784. We likewise reaffirmed the principles laid down in Owens v. Commonwealth, 159 Va. 1015, 1022, 167 S.E. 377, 380, that the separation of the jury out of the custody and control of the court, or out of the custody and control of the officer to whom the jury has been legally committed, does not per se vitiate the verdict, but "is merely prima facie sufficient to vitiate" it; and that "when it appears that there has been a separation of the jury, the burden is upon the commonwealth to refute the presumption by disproving, beyond a reasonable doubt, all probabilities or suspicions of tampering, and that the prisoner has not beenprejudiced thereby, unless the prisoner's own proof should be sufficient to that end."

This rule prevails in West Virginia (State v. Cotts, 49 W.Va. 615, 39 S.E. 605, 55 L.R. A. 176), and in some other jurisdictions. Beale's Criminal Pleading and Practice, 1899 Ed., § 248.

There is a conflict of authority as to whether or not the accused can bind himself by consenting to a separation of the jury in a case in which they should be kept together. 20 R.C.L., New Trial, § 33, p. 250; 16 C.J., Criminal Law, § 2528, p. 1076; 23 C.J.S., Criminal Law, § 1387, pp. 1066, 1067. Numerous cases on the subject are collected in the annotations in 43 Am.Dec. 86; 24 L.R. A., N.S. 781; 34 A.L.R. 1115; 79 A.L.R. 821.

Generally speaking, in those jurisdictions in which it is held that the mere separation of the jury per: se vitiates the verdict because there is a conclusive presumption that the accused has been prejudiced thereby, it is also held that the accused can not consent to or waive the. right that the jury be kept together....