Puckett v. Commonwealth

• Decision Date: 21 September 1922
• Parties: PUCKETT. v. COMMONWEALTH.
• Court: Virginia Supreme Court

113 S.E. 853

PUCKETT.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

Error to Circuit Court, Dickenson County.

Caudle Puckett was convicted of murder in the second degree, and brings error. Affirmed.

With the exception of certain allegations touching the action of the trial court on the subject of bail, as to which the assignment of error was abandoned by counsel for the accused upon the oral argument on the appeal, the petition for the writ of error in this case was in the following words and figures, to wit:

"Your petitioner, Caudle Puckett, represents that in the year 1920 John Henry Deel was killed in Dickenson county, and your petitioner was put under bond to appear at the next term of circuit court of said county. At the next term of said court he appeared, was indicted for the murder of the said John Henry Deel, the case was continued, and he entered into a recognizance for his appearance at the next term of said court; that at the next term of said court (July, 1921), after a trial in which he was convicted by a jury of murder in the second degree, he was by final judgment of said court sentenced to confinement in the penitentiary for the term of 18 years.* * *

"Your petitioner is advised and represents to your honors that the said judgment is erroneous, and that he is aggrieved thereby, in the following particulars, viz.:

"Assignments of Error.

"First. The court erred in refusing, to quash the original venire facias list, and sheriff's return of same, and also the second venire facias and return.

"Second. The court erred in giving each of the 13 instructions on behalf of the commonwealth.

Third. The court erred in refusing each of 4 instructions requested by the defendant.

"Fourth. The court erred in amending each of 5 instructions requested on behalf of the defendant.

"Fifth. The court erred in admitting certain testimony and evidence on behalf of the commonwealth over the objection of the defendant, and in refusing to strike out certain testimony on motion of the defendant.

"Sixth. The court erred in refusing, to set aside the verdict of the jury and in refusing to grant the defendant a new trial on his motion, because the same was contrary to the law and evidence, against the evidence, and without evidence to support it.

"Seventh. The court erred in overruling the defendant's motion in arrest of judgment.

"Eighth. The court erred in not having the order read each day during the trial and signed as required by statute.

"Ninth. The court erred in changing the order for the 12th day of July, on the 20th day of July, especially in the absence of the defendant and out of the courtroom.

"And your petitioner further represents that the said judgment and proceedings at the trial of said case is in other respects uncertain, informal, and erroneous. All of which will appear from the transcript of the record in said cause, certified as required by law, as well as the judgment therein is herewith exhibited along with this petition, and prayed to be considered as a part thereof.

"Your petitioner therefore prays that a writ of error and supersedeas may be awarded him; in order that the said judgment for the cause of error aforesaid before you may be caused to come, that the whole matter in the said judgment contained may be reheard, and that the said judgment may be reversed and in error; and your petitioner prays that be may be allowed bail pending the hearing of his case in your honor's court.

"And your petitioner will ever pray, " etc.

No brief in behalf of the accused was filed along with the petition for writ of error, nor any brief, indeed, until 4 days before the oral argument of the case.

The brief of the Attorney General, filed 9 days before the oral argument, makes the point that:

"The assignments are in general terms, and the petitioner has not 'laid his finger' on a single specific error. Therefore we are in the position of being required to hunt through the record to ascertain what errors it is contended the lower court made, because no brief has been filed within the rules of this court, or otherwise, in this case by the accused, and we are forced to guess at the complaints of the accused with reference to the actions of the trial court."

W. A. Daugherty, of Pikeville, Ky., and Sutherland & Sutherland, of Clintwood, for plaintiff in error.

John R. Saunders, Atty. Gen., and J. D. Hank, Jr., Asst. Atty. Gen., for the Commonwealth.

SIMS., J., after making the foregoing statement, delivered the following opinion of the court:

1. The assignments of error are not aided by any brief which can be considered as a part of the petition, and under a long line of decisions of this court none of the assignments of error is sufficient. Orr v. Pennington, 93 Va. 268, 24 S. E. 928; Atlantic & D. R. Co. v. Reiser, 95 Va. 418, 28 S. E. 590; Norfolk & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S. E. 614; Bank v. Wm. R. Trigg Co., 106 Va. 327, 56 S. E. 158; Amusement Co. v. Pine Beach Co., 109 Va. 325, 63 S. E. 1002, 16 Ann. Cas. 1120; Washington So. Ry. Co. v. Cheshire, 109 Va. 741, 65 S. E. 27; Worley v. Mathieson Alkali Works, 119 Va. 862, 89 S. E. 880; Rust v. Reid, 124 Va. 1, 97 S. E. 324; Lorillard Co. v. Clay, 127 Va. 734, 104 S. E. 384; Deitz v. High, 131 Va. ——, 109 S. E. 215; Deitz v. Whyte, 131 Va. ——, 109 S. E. 212—to cite a portion only of the repeated decisions on this subject.

In Orr v. Pennington, supra, the assignment of error was as follows:

"Your petitioner avers that there was manifest error in dismissing said bill, and rendering said judgment.* * *"

The assignment is held insufficient, and this is said:

"The petition required is in the nature of a pleading, and should state the case which the party applying for the appeal wishes to make in the appellate court. It ought to assign clearly and distinctly all the errors relied on for a reversal of the case, so that the opposite party may know what questions are to be raised in the appellate court, and not have new questions sprung upon him at or just before the hearing of the cause, when there may not be sufficient time or opportunity for meeting them."

In Norfolk & W. Ry. Co. v. Perrow, supra, the assignment of error was a general statement that the defendant relies upon the refusal of the court to give certain instructions asked for. The court said:

"The general statement, that the refusal of the court to give instructions is relied on as error, is not in compliance with section 3464 of the Code, which requires that a petition for an appeal, writ of error, or supersedeas shall assign errors."

In Bank v. Trigg, supra, this is said:

"Counsel * * * should * * * lay his finger on the error"

—and the following authorities are quoted with approval, namely:

2 Cyc. 980, where this is said:

"An assignment of errors is in the nature of a pleading, and in the court of last resort it performs the same office as a declaration or complaint in a court of original jurisdiction. The object of the assignment of error is to point out the specific errors claimed to have been committed by the court below, in order to enable the reviewing court and opposing counsel to see on what points plaintiff's coun sel intends to ask a reversal of the judgment or decree, and to limit discussion to those points."

And Clements v. Hearne, 45 Tex. 415, in which this is said:

"To require the appellee or the court to hunt through the record for every conceivable error which the court below may have committed, when none has been pointed out by the party complaining of the judgment, would obviously be unreasonable and oppressive on the party recovering judgment, and most burdensome on this court, unnecessarily impeding the progress of its business, and, by the confusion and uncertainty which it would beget as to the questions on which the case was decided in the court below, destroy its character as an appellate tribunal, and by the multiplicity of the questions for discussion tend much more to confusion and error in its own decisions than the correction of errors which may have in fact occurred in the district court."

In Washington So. Ry. Co. v. Cheshire, supra, and Rust v. Reid, supra, it is held that a general assignment of error, touching the action of the court in the giving or refusal of instructions, without pointing out the specific errors complained of, does not amount to any assignment of error at all.

In Lorillard Co. v. Clay, supra, 127 Va. at page 746, 104 S. E. at page 3S8, this is said:

"To say that the 'evidence in this case did not justify the instructions' is an admission that there was evidence in the cause upon which the trial court based its instructions, but a denial of its sufficiency. The petition should have set out the evidence, and pointed out wherein it was insufficient as a basis for the instructions. This court will not undertake that burden.

* * * This court cannot declare that the evidence did not justify the instructions, without first ascertaining and weighing all the evidence constituting the basis for the instructions, and, as the petitioner is making the charge of insufficiency, it is incumbent on him to set out the evidence and point out its insufficiency."

That pronouncement is equally applicable to the assignment in the instant case that the verdict was "contrary to the evidence, against the evidence, and without evidence to support it."

Therefore, we might properly dismiss the case without further remarks. But, as the liberty of the accused is involved, we have carefully considered all of the questions raised by the assignments of error in the petition when considered as aided by the belated brief and by the oral argument for the accused, and find no merit in any of them; but, in view of the insufficiency of the assignments of error, we do not feel that we need to set forth specifically the reasons for our conclusions upon any of those questions. We will, however, make the following remarks with respect to the subjects...