Reil v. Com.
| Decision Date | 01 December 1969 |
| Court | Virginia Supreme Court |
| Parties | Galen Randolph REIL v. COMMONWEALTH of Virginia. |
Ronald W. Williams, Danville (Selig H. Kingoff, Warren, Parker & Williams, Danville, on brief), for plaintiff in error.
M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty., Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
Defendant, Galen Randolph Reil, was tried under sec. 18.1--109, Code of Virginia, and found guilty by a jury of the embezzlement of $250.00 from his employer. His punishment was fixed at a fine of $500.00. The trial court overruled his motion to set aside the verdict and entered judgment in accordance with the verdict, giving him six months within which to pay the fine and costs. He is here on a writ of error to the judgment.
Defendant contends that the trial court erred (1) in admitting into evidence a letter written by him to his wife, (2) in imposing certain restrictions on him before the trial commenced as to the evidence which he might introduce, and (3) in refusing to set aside the jury verdict because of radio news releases which were broadcast the day before the trial commenced.
The evidence shows that Reil organized in 1963 and was for several years thereafter a stockholder in Galen's Shoes, Inc., a corporation operating first one and then two shoe stores in Danville. Forty-five percent of the outstanding stock in the corporation was owned by Reil, ten percent by another employee and forty-five percent was owned by Riverside Shopping Center, Inc., a corporation controlled by one John W. Daniel. Reil managed both stores and was paid a weekly salary. Financial problems having developed in the business, on July 21, 1967 an agreement was signed by Reil and Riverside, under which Reil was to continue to manage the shoe stores as an employee under close supervision in accordance with procedures outlined in the agreement. All checks on the bank accounts of the business were to be countersigned by Daniel's auditor, John Ryan, and no money was to be disbursed without Ryan's approval. Shortly thereafter Riverside acquired all the outstanding capital stock of Galen's Shoes, Inc.
On the evening of August 31, 1967 Ryan countersigned in blank and delivered to Reil eight checks, six for payroll at the two stores, including Reil's own weekly salary and that of his wife, who also worked in one of the stores, and two for outstanding telephone and advertising bills. The next morning Reil filled in and signed the six payroll checks, including his own check for $112.21 after proper deductions from his gross weekly salary of $130.00. He then made out the seventh check payable to himself for $250.00. He never signed the eighth blank check and inserted it in the checkbook unwritten. Although checkbook stubs were filled in for the payroll checks none was filled in for the $250.00 check nor was any notation made on the face of the check to show the purpose for which it was written. Reil testified that the $250.00 check represented vacation pay for two weeks to which he was entitled at $130.00 per week, less deductions arbitrarily taken at $5.00 per week. However, before he filled in and signed the check, he advised no one that he was claiming or taking vacation pay or that he was terminating his employment.
This check for $250.00, which gave rise to the charge of embezzlement upon which he was tried, was cashed on September 1 by Reil from the store's bank deposit and, as prearranged, he and Daniel's married daughter, Mrs. Lois Daniel Dalton, left Danville in separate cars and drove to Orlando, Florida.
Several days after they arrived in Florida Reil telephoned his attorney in Danville and was informed of the embezzlement charge against him and of other charges against Mrs. Dalton. Reil and Mrs. Dalton immediately returned to Danville.
Daniel testified that Reil had informed him that he did not plan to take any vacation in 1967 except for one weekend. Ryan testified that Reil told him on August 31, 1967 that he would take off 'a couple of days' the following week, but Reil never mentioned vacation pay.
From their verdict it is apparent that the jury, as they were justified in doing, rejected Reil's explanation that the $250.00 check was vacation pay to which he was entitled and believed the evidence introduced on behalf of the Commonwealth.
During the course of the trial a letter written by Reil to his wife before leaving town with Mrs. Dalton was introduced into evidence over the general objection of Reil's counsel. This is now assigned as error on the ground that the letter was a privileged communication between husband and wife. The letter reads as follows:
This letter, if proper objection had been made and exception noted, was inadmissible as a privileged communication coming within the prohibition of sec. 8--289 of the Code of Virginia, which provides that 'Neither husband nor wife shall, without the consent of the other, be examined in any case as to any communication privately made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage subsisted.' See Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949).
Defendant's counsel did not object, however, on the ground that the letter was a privileged communication. Rather, he made a general objection, which the trial judge interpreted as an objection that the letter was irrelevant, as shown by the following exchange:
'Mr. Williams: I would object to this, Mr. Fuller.
I think it's got some probative value.
Mr. Williams: I would except to that.'
Thus, proper objection was not made in compliance with Rule 1:8, the pertinent provisions of which are:
'In civil and criminal cases, all objections to writs of every kind, pleadings, instructions, notices, the admissibility of evidence, or other matters requiring a ruling or judgment of the trial court, shall state with reasonable certainty the ground of objection, and unless it appears from the record to have been so stated, such objections will not be considered by this Court except for good cause shown, or to enable this Court to attain the ends of justice.'
The reason for application of the rule has been set forth clearly in Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851, 854 (1953):
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