Randolph v. Commonwealth

• Decision Date: 23 September 1926
• Citation: 134 S.E. 544
• Court: Virginia Supreme Court
• Parties: RANDOLPH. v. COMMONWEALTH.

134 S.E. 544

RANDOLPH.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept 23, 1926.

Error to Circuit Court, Scott County.

William Randolph was convicted of an assault with intent to kill, and he brings error. Reversed and remanded.

W. S. Cox, of Gate City, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

CAMPBELL, J. The accused was tried upon an indictment which charged the offense as follows:

"That William Randolph, on the — day of—, in the year 1924, 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 $100. 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 home. The accused, a short time after his departure from the Smith home, returnedthereto 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 21 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 13 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 8 persons who were armed with pistols and a shotgun. 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 shotgun holes there were 27 bullet holes in the house, 21 of which were fired by the arresting party. The only person wounded was the accused, who was shot in the back.

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 of its contents to be admissible, it must be first shown that diligent search had been made for the warrant and that the same was either lost or destroyed.

We, are of opinion that this assignment of error is well founded. It was incumbent upon the commonwealth to produce the warrant or account for its nonproduction. The commonwealth attempted to account for the nonproduction, of the warrant by showing the connection of Johnson with the same. He testified as follows:

"The warrant issued for the defendant and placed in the hands of Howard Carter was brought back to me later on, and the return on it was in the handwriting of Sheriff C. C. Palmer. It was not in the handwriting of Howard Carter nor Rhea Miller. I did not keep the warrant and do not know what was done with it. I authorized Howard Carter to execute the warrant."

This account is not sufficient to show that the warrant was lost. It was the duty of Howard Carter to return the warrant to either the issuing magistrate, Johnson, or to some other magistrate, whose duty, in turn, was to deliver the same to the clerk of the circuit court, the custodian delegated by law to receive it. Neither Carter nor the clerk were introduced to show that they did not possess the warrant.

In Marshall v. Commonwealth, 140 Va. 541, 125 S. E. 329, it Is said:

"If the basis upon which the 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."

In Judson v. Eslava, Minor (Ala.) 71, 12 Am. Dec. 32, it is said:

"The testimony of the last custodian of the paper or record should be produced."

In Butts v. Commonwealth (Va.) 133 S. E. 764, the facts were:

"That the accused had worked for the Royal Guano Company for 2¹/₂ days at $2 a day, when he was discharged by his walking boss. He thereupon demanded immediate payment of the amount due him, but was told that Saturday was pay day, and that he would have to return on Saturday to get his money, and he was ordered off the premises. He objected to returning on Saturday because it would entail the loss of a day, and further because he thought that, if he was discharged, he was entitled to immediate payment for the work done. He left the premises, however, peaceably, but, after changing his clothes, he put his pistol in his pocket and returned to the plant in quest of the superintendent. When he found the superintendent, he stated to him the facts about his discharge, and demanded payment of what was due him. He was again told that Saturday was pay day, and that he would have to return on that day to get his money. There was no controversy over the amount due, and it is conceded on behalf of the commonwealth that the amount was $5. Upon refusal of...