Randolph v. Commonwealth

Decision Date23 September 1926
CourtVirginia Supreme Court
PartiesWILLIAM RANDOLPH v. COMMONWEALTH.

1. ARREST — Warrant — Warrant the Best Evidence of its Contents — Case at Bar. — In the instant case, a prosecution for an assault with intent to kill by accused, upon a person attempting to arrest him, the first assignment of error called in question the actoin of the trial court in permitting a Commonwealth's witness, the magistrate who issued the warrant, to testify that he issued a warrant for the arrest of accused which charged a felony. Counsel for accused objected to the introduction of this evidence on the ground that the warrant was the best evidence of what it charged; that, in order for the secondary evidence of its contents to be admissible, it should first be shown that diligent search had been made for the warrant and that the same was either lost or destroyed.

Held: That this assignment of error was well founded.

2. ARREST — Warrants — Warrant the Best Evidence of its Contents — Foundation for the Introduction of Secondary Evidence — Case at Bar. — In the instant case, a prosecution for an assault with intent to kill by accused, upon a person attempting to arrest him, the magistrate who issued the warrant of arrest testified that he did not keep the warrant and did not know what was done with it.

Held: That this was not sufficient to show that the warrant was lost. It was the duty of the person authorized to make the arrest to return the warrant to the issuing magistrate, or some other magistrate, whose duty, in turn, was to deliver the same to the clerk of the circuit court. Neither the clerk nor the person authorized to make the arrest were introduced to show that they did not possess the warrant.

3. LOST INSTRUMENTS AND RECORDS — Foundation for the Introduction of Secondary Evidence — Diligent Search — Last Custodian. — If the basis upon which secondary evidence is sought to be introduced is that the instrument is lost, there must be proof that a diligent search has been made in the place where it is most likely to be found and that the search has been unsuccessful, and the testimony of the last custodian of the paper or record should be produced.

4. ARREST — Warrants — To Whom Warrant may be Directed. — While it is usual for a warrant of arrest to be directed to the sheriff of the county, or a constable of the magisterial district of the county, this is not essential to its validity.

5. JUSTICE OF THE PEACE — Arrest — Crime Committed in the Presence of Justice. — A justice of the peace has not only the power to arrest for a felony committed in his presence, but has the power verbally to command any person to take the felon into custody. The same is true as to the commission of a breach of the peace.

6. ARREST — Warrant — Deputizing one not an Officer to Execute Warrant — Delegation of Power to Arrest by one Deputized to Make the Arrest — Case at Bar. — In the instant case, a prosecution for an assault with intent to kill by accused, upon a person attempting to arrest him, it was assigned as error that the action of the magistrate in deputizing one H.C., not an officer, to execute the warrant of arrest upon the accused was illegal, and that the act of one J.K.C., who was deputized by H.C., in seeking the arrest of accused was illegal.

Held: That the justice had the legal power to direct the warrant to H.C. and thus deputize him to effect the arrest of accused, but that H.C. could not legally delegate the power vested in him to J.K.C. The warrant being directed to H.C. it was his duty to personally execute the same, though he was vested with the power to call others to his assistance in order to execute the warrant.

7. ARREST — Warrant — Duty of Persons Making Arrest to Inform Accused of his Authority — Production of Warrant. — Even though one has been lawfully empowed to effect an arrest it is his duty to inform the accused of his authority, and if demanded of him produce the warrant if requested by the accused after submission to the arrest.

8. ARREST — Warrant — Execution — Who May Execute. — Where a warrant is executed neither by a sworn officer nor the person to whom it was directed by the magistrate, the warrant is rendered illegal and void as against all persons on whom it was served.

Error to a judgment of the Circuit Court of Scott county.

The opinion states the case.

W. S. Cox, for the plaintiff in error.

John R. Saunders, Attorney General, Leon M. Bazile and Lewis H. Machen, Assistantt Attorneys General for the Commonwealth.

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

The accused was tried upon an indictment which charged the offense as follows:

"That William Randolph, on the day of in the year one thousand nine hundred and twenty-four, in the said county of Scott, did with malice aforethought, in and upon one J. K. Carter, make an assault, he, the said William Randolph being then and there armed with a dangerous weapon, called a pistol, and did then and there with and by means of said pistol shoot at and towards the said J. K. Carter, with intent, him, the said J. K. Carter, with set purpose and malice aforethought to kill and murder against the peace and dignity of the Commonwealth."

The jury found the accused guilty and fixed his punishment at a fine of one hundred dollars. The motion of the accused to set aside the verdict was overruled and judgment was pronounced by the court in accordance with the verdict. Whereupon the accused applied for and obtained a writ of error from this court.

On the night of the alleged occurrence, the accused, who was a visitor in the home of his aunt, Mrs. Samuel Smith, accompanied by four young ladies and two young men, attended a service at the church situated near the Smith hoem. The accused, a short time after his departure from the Smith home, returned thereto and informed his aunt that he had become involved in a little trouble at the church, but that it would not amount to anything. Though twenty-one witnesses testified upon the trial of the accused, it is a remarkable fact that the record fails to disclose the nature of the trouble which occurred at the church. The nearest approach to any information upon the subject is the statement of a Commonwealth's witness, named Johnson, who was a magistrate, that he issued a warrant for the arrest of the accused which charged a felony; and that he deputized Howard Carter and Rhea Miller to execute the warrant. Neither Howard Carter nor Rhea Miller testified in the case, so it is only to be inferred that some one armed with a warrant of arrest was present when the alleged crime was attempted.

It appears from the record that there were thirteen people in the home of Samuel Smith at the time it is charged that the accused attempted to murder J. K. Carter. Among the people present were several ladies. While the record fails to show the number of persons engaged in the effort to arrest the accused, it is shown that there were at least eight persons who were armed with pistols and a shot gun. Two witnesses testified that the "crowd" acted as if they were drinking; that they smelt liquor upon them.

Upon an examination of the Smith home after the difficulty, it was ascertained that in addition to the shot gun holes, there were twenty-seven bullet holes in the house, twenty-four of which were fired by the arresting party. The only person wounded was the accused, who was shot in the back.

1, 2 The first assignment of error calls in question the action of the trial court in permitting the Commonwealth's witness, Johnson, to testify that he issued a warrant of arrest for the accused which charged a felony. When this evidence was offered, counsel for the accused objected to its introduction on the ground that the warrant was the best evidence of what it charged; that, in order for secondary evidence...

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    • United States
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    ...Lost and Destroyed Instruments § 23 (1970); see also Wheeler v. State, 629 S.W.2d 881, 883 (Tex.App.1982); Randolph v. Commonwealth, 145 Va. 883, 886-87, 134 S.E. 544 (1926). There were but a few ways in which the state could prove that the warrant had been issued in September, 1984: (1) pr......
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