Randall v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: HOLT
• Citation: Randall v. Commonwealth, 183 Va. 182, 31 S.E.2d 571 (1944)
• Decision Date: 09 October 1944
• Parties: RANDALL et al. v. COMMONWEALTH.

31 S.E.2d 571

183 Va. 182

RANDALL et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 9, 1944.

Error to Circuit Court, York County; Frank Armistead, Judge.

Paul Randall and Floyd Dandridge were convicted of robbery, and they bring error. Affirmed.

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

Frank A. Kearney, of Phœbus, and A. W. E. Bassette, Jr., of Hampton, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for The Commonwealth.

HOLT, Justice.

At the October term of the Circuit Court of York county a grand jury returned this indictment:

"That William A. Thomas, Paul Randall and Floyd Dandridge did, in the nighttime, on the 7th day of August, 1943, in the said county of York, unlawfully, feloniously, and maliciously, strike and beat on the head and about the body, with a blunt instrument, one C. T. Davis and him the said C. T. Davis, did rob, steal, take and carry away from the person of the said C. T. Davis, the sum of three hundred dollars ($300.00) in United States currency and checks, the property of said C. T. Davis against his will and with intent to deprive him of his ownership therein, against the peace and dignity of the Commonwealth.

"Upon the evidence of A. S. White, R. B. Curtis, A. A. Anderson, Leroy Woody and C. T. Davis."

Afterwards, and in October of that year, the Circuit Court of said county made this disposition of those indicted:

"Upon a plea of guilty by accused William A. Thomas and a plea of not guilty by the accused, Paul Randall and Floyd Dandridge, and the accused and the Commonwealth, with consent of court, waived a trial by jury.

"The court after hearing the evidence finds all three of the accused guilty as charged in the within indictment and fixes their punishment at confinement in the State Penitentiary for fifteen years each. Oct. 22, 1943, Frank Armistead, Judge."

"Be it remembered upon the trial of this cause, and after the defendants had pleaded not guilty and the defendants with the consent of the Commonwealth Attorney, had agreed to submit all matters of fact to the court, without a jury, and after the Commonwealth had introduced as witnesses C. T. Davis, Sheriff A. A. Anderson of Elizabeth City county; Sheriff A. S. White of York county; and Mrs. C. T. Davis, the Commonwealth announced that it rested.

"Whereupon the defendants, by counsel, moved the court to strike the evidence of the Commonwealth for the reason that the Commonwealth had failed to show that the offense charged against the defendants had occurred in York county.

"Whereupon the court stated that he would take judicial cognizance of the fact that the half way house, where Mr. Davis' store was, was in York county and would also take judicial cognizance that Mr. Davis' residence was in York county.

"To the action of the court in overruling the motion of the defendants to strike the evidence as insufficient to sustain a conviction for the reason that there was no evidence to show that the crime alleged had taken place in York county, the defendant, by counsel, excepted and tender this bill of exception, which they pray might be signed, sealed and made a part of the record in this cause, which is accordingly done, within the time prescribed by law, this 17th day of December, 1943.

"Frank Armistead,

"Judge of the Circuit Court of York County, Virginia."

These defendants heavily rely upon Anderson v. Commonwealth, 100 Va. 860, 42 S.E. 865. There the court said that the burden of proving venue was upon the Commonwealth, just as is the burden of proving other facts necessary to conviction, and further said that the allegations of venue contained in the indictment could not supply proof. The general law on this subject is well stated in a note, 113 A.L.R. 259, which reads:

"The distinction should be borne in mind between that which the court may judicially notice and that which it must notice. 'Courts may judicially notice much which they cannot be required to notice.' Thayer, 'Judicial Notice and the Law of Evidence, ' 3 Harvard L. Rev. 285, 310. See also 5 Wigmore on Evidence, 2d ed. sec. 2568.

" 'The court is bound to take notice of the law; hence it is error not to do so. But in respect to nearly all matters of fact of which it may take notice, it is not bound to do so: and whether it will do so or not depends partly on the nature of the subject, the issue, the apparent justice of the case, partly on the information of the court and the means of information at hand, and partly on the judicial disposition.' Abbott, note to Porter v. Waring, 1877, 2 Abb.N.C., N.Y., 231. And see 15 R.C.L., Judicial Notice, sec. 4; Hunter v. New York, O. & W. R. Co., 1889, 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246."

" * * * whether this or that matter of fact will be judicially known in any particular case is very largely discretionary with the court." 15 R.C.L. 1061.

Whether they "will take judicial notice of well-established matters of fact is discretionary with the trial court the rulings of which usually depend upon the nature of the subject, the issue involved, the apparent justice, and the circumstances of the particular case." 20 Am.Jur. 53.

"Courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction." 1 Greenl.Ev., sec. 6.

In Kelley v. Commonwealth, 140 Va. 522, 125 S. E. 437, 442, the court, departing from what was said in Anderson's case, cited among its conclusions the fact that the indictment charged that the offense was committed in Alleghany county and further said:

"The case falls within the holding of West v. Commonwealth, 125 Va. 747, 750-752, 99 S.E. 654, and Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582, where the reasoning of the court and the authorities upon which it is based are fully set forth. The case of Anderson v. Com., 100 Va. [860], 864, 42 S.E. 865, has been often cited as holding a contrary doctrine; but it must be deemed to be overruled in so far as it is in conflict with the cases cited. Venue, it is true, will not be presumed, but must be proved, and the burden is on the Commonwealth to prove it; but, in the absence of any direct evidence on the subject by either party, this court will not, for that reason, reverse the judgment of the trial court, if it can see from the indirect evidence disclosed by the record that the jury could not have had a reasonable doubt that the of-fense was committed within the venue laid in the indictment."

In West's case, 125 Va. 747, 99 S.E. 654, the court, quoting from Byrd v. Commonwealth, 124 Va. 833, 98 S.E. 632, said:

" 'The failure clearly to prove venue is usually due to...