Powell v. Commonwealth, Record No. 2796.
| Decision Date | 24 January 1944 |
| Docket Number | Record No. 2796. |
| Citation | 182 Va. 327 |
| Court | Virginia Supreme Court |
| Parties | LAWRENCE POWELL v. COMMONWEALTH OF VIRGINIA. |
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. JURY — Separation — General Rule. — 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.
2. JURY — Separation — Felony Case Where Punishment May Be Death. — The jury must be kept together in the trial of a felony case where the punishment may be death.
3. JURY — Separation — Burden on Commonwealth. — Separation of the jury out of the custody and control of the court, or out 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 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 been prejudiced thereby, unless the prisoner's own proof should be sufficient to that end.
4. JURY — Separation — Right to Have Jury Kept Together May Be Waived. — The right to have the jury kept together is a right belonging both to the state and to the defendant, and where both the state and the defendant consent to the separation of the jury after the final submission of the cause and before the verdict is returned, the defendant waives his right to have the jury kept together.
5. JURY — Separation — Keeping Together Not Jurisdictional Prerequisite to Valid Verdict. — Keeping the jury together throughout the trial is not a jurisdictional prerequisite to a valid verdict.
6. JURY — Separation — Keeping Together an Incident of Trial. — The practice of keeping the jury together in capital cases is an incident of the trial.
7. JURY — Separation — Waiver of Right to Have Jury Kept Together — Case at Bar. — In the instant case, a prosecution for rape, after the conclusion of the Commonwealth's evidence, counsel for accused suggested that the jury be allowed to separate over night and the court told the jury that the court had had a conference with the Commonwealth's attorney and his assistants and counsel representing defendant, and that they were willing to agree not to keep the jury together regardless of the verdict and would raise no question about it one way or the other. He then cautioned the jury about discussing the case or reading newspapers. There was no claim of duress or coercion on the part of either the court or the jury.
Held: That under the circumstances the accused waived the right to have the jury kept together throughout the trial.
8. OPINIONS OF COURTS — Interpretation. — The language in an opinion must be interpreted in the light of the facts which were before the court.
9. JURY — Separation — Vitiating Verdict Depends upon Facts. — Whether or not there has been such a separation of the jury as will vitiate the verdict should be determined upon the facts appearing in the particular case.
10. JURY — Separation — Waiver of Right to Have Jury Kept Together — Burden of Showing Misconduct During Separation. — Where the jury are permitted to separate by the court upon the express consent of the accused, and with the like consent of the Commonwealth's attorney, prejudice will not be presumed in favor of the accused, and the burden will be upon him to show that the jury, during such separation, were guilty of misconduct to his prejudice.
11. JURY — Separation — Voluntary Consent to Separation — Case at Bar. — In the instant case, a prosecution for rape, after the conclusion of the Commonwealth's evidence, counsel for accused suggested that the jury be allowed to separate over night and the court told the jury that the court had had a conference with the Commonwealth's attorney and his assistants and counsel representing defendant, and that they were willing to agree not to keep the jury together regardless of the verdict and would raise no question about it one way or the other. He then cautioned the jury about discussing the case or reading newspapers. There was no claim of duress or coercion on the part of either the court or the jury. There was no showing that the jury or any member thereof was guilty of any misconduct during the separation or that accused was in any way prejudiced thereby. The lower court held that accused, having voluntarily consented to the separation, was not entitled to a new trial because of it.
Held: No error.
12. JURY — Separation — Time of Raising Question — Second Appeal — Case at Bar. — In the instant case, a prosecution for rape, the Supreme Court of Appeals affirmed the judgment of the lower court and accused began his sentence in the state penitentiary. While habeas corpus proceedings were pending in the United States District Court, the prisoner was brought before the state trial court to be resentenced. He appealed a second time and assigned as error the fact that at the original trial the jury were permitted to separate and go to their homes before the trial had been concluded.
Held: That the contention made by the accused should have been raised on the first appeal.
13. CONSTITUTIONAL LAW — Speedy Trial — Time Elapsing between Judgment and Sentence — Case at Bar. — In the instant case, a prosecution for rape, the verdict of the jury was recorded on December 21, 1939, and sentence was pronounced on accused on June 28, 1943. Accused contended that the lower court was without authority to pass sentence because of the lapse of time. In the interim extended hearings were conducted to determine whether the accused was entitled to a new trial on the basis of after-discovered evidence, and accused had accepted the verdict as valid and pointed out no valid reason why his detention should be held to be illegal until he filed habeas corpus proceedings in the Federal court in June, 1943.
Held: That clearly, up until the time of the habeas corpus proceedings, accused had waived his right to ask for a discharge.
14. SENTENCE AND PUNISHMENT — Substitution of Valid Sentence for Void Sentence. — The authorities are unanimous in the view that a court may impose a valid sentence in substitution for one that is void, even though the execution of the void sentence has commenced.
15. VERDICT — Validity of Judgment. — The invalidity of the judgment does not affect the validity of the verdict.
Error to a judgment of the Hustings Court of the city of Roanoke. Hon. James L. Almond, Jr., judge presiding.
The opinion states the case.
W. A. Hall, Jr., for the plaintiff in error.
Abram P. Staples, Attorney General, and Walter E. Rogers, Assistant Attorney General, for the Commonwealth.
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 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,...
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