Rosenberger v. Commonwealth

• Decision Date: 17 November 1932
• Parties: H. C. ROSENBERGER v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 953

159 Va. 953

H. C. ROSENBERGER v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

November 17, 1932.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. CONTINUANCES — Discretion of Trial Court — Abuse of Discretion — Injury to Party Complaining. — The granting or refusing of a continuance is always addressed to the sound but not the arbitrary discretion of the court, and to entitle a party to a reversal on the ground of abuse of its discretion by the court, it must be clearly shown that the court abused its discretion and that injury resulted to the party complaining from such abuse.

2. CONTINUANCES — Discretion of Trial Court — Abuse of Discretion — Case at Bar. — In the instant case the refusal of the trial court to grant accused a continuance on the ground that his counsel, a member of the Senate, was attending a session of the General Assembly, was assigned as error. The defendant was charged with giving and with selling liquor to a minor. The evidence was not before the Supreme Court of Appeals, nor was there any record of what took place, and so the Supreme Court of Appeals may assume that accused was adequately represented, that he had a fair trial, and that the evidence was amply sufficient to sustain his conviction. In the face of these assumptions the Supreme Court of Appeals could not go further and assume that different results would have been reached had counsel for the accused tried the case himself, or that any counsel could have led the jury to a different conclusion and to a different verdict.

3. APPEAL AND ERROR — Harmless Error — Refusal of Continuance Asked for on the ground that Counsel Was Absent Serving in the General Assembly — Case at Bar. — The instant case was a prosecution for selling liquor to a minor. Accused asked for a continuance on the ground that his counsel, a member of the General Assembly, was necessarily absent attending a session of the legislature. There was no reason to believe that the absent counsel would have been more successful than counsel for the accused who tried the case. If the court committed error in refusing the continuance (and the Supreme Court of Appeals held that it did not), the error was harmless.

4. APPEAL AND ERROR — Harmless Error — Refusal of Continuance Asked for on the Ground that Counsel Was Absent Serving in the General Assembly — Case at Bar. — The instant case was a prosecution for selling liquor to a minor. Accused asked for a continuance on the ground that his counsel, a member of the General Assembly, was necessarily absent attending a session of the legislature. In determining the possibilities of error and its character the Supreme Court of Appeals should have had the evidence before it. The accused having seen fit not to present the evidence, if he has suffered thereby, he has only himself to blame.

5. CONTINUANCES — Absence of Counsel — Counsel a Member of the Legislature. — The public duties of members of the legislature are important and engrossing and should be diverted for no private purpose; but the mere fact that counsel is a member of that body does not make a continuance a matter of right. At common law attendance on the sessions of a legislative body was not a cause for a continuance which a court was bound to recognize.

6. CONTINUANCES — Absence of Counsel Attending Session of General Assembly — Section 298 of the Code of 1930. — Section 298 of the Code of 1930 provides that any party who is a member of the General Assembly, or any member or officer of the General Assembly, employed or retained as attorney in any action or proceeding, prior to or during the session of the General Assembly, shall have a continuance as a matter of right when the General Assembly is in session. This act supersedes the former Code section and the act of 1906 (Acts 1906, p. 19), and contains all the statutory Virginia Law on the subject. If section 298 had been a newly enacted statute, which for the first time gave this right to counsel, it might be construed by intendment to extend the right to a client, but such is not the case. The act of 1906 and the Code of 1919 gave it to any party to any action. This right, by the act of 1926 (section 298 of the Code of 1930), was not taken generally from clients and invested in counsel, but in terms it was continued as to clients who were members of the General Assembly, thus plainly excluding other clients.

7. STATUTES — Amendments — Construction of Amendments. — Where an amendment is made by declaring that the original statute "shall be amended so as to read as follows," retaining part of the original statute and incorporating therein new provisions, the effect is not to repeal, and then re-enact, the part retained, but such part remains in force as from the time of the original enactment, while the new provisions become operative at the time the amendatory act goes into effect, and all such portions of the original statute as are omitted from the amendatory act are abrogated thereby and are thereafter no part of the statute.

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

The opinion states the case.

F. H. Brumback, M. E. Stickley and Weaver & Armstrong, for the plaintiff in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

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

H. C. Rosenberger, who was convicted of violating the prohibition laws, has appealed.

He was indicted in the Circuit Court of Shenandoah county at its May term, 1930. The indictment charged him with manufacturing ardent spirits and with giving and selling ardent spirits to a minor. He was then a fugitive from justice. On the 14th of July he together with W. D. Rosenberger and E. L. Rosenberger appeared and entered into bond in the sum of $2,000, conditioned for his appearance at court in September. He failed to appear and on September 8 a rule issued requiring them to show cause why judgment should not be entered on their bond. On September 24 these sureties did appear produced the accused, the rule against them was discharged, on motion the case was continued till November, and he was again bailed in the same sum with the same sureties. At the November term this case was continued because of the absence of a material witness for the Commonwealth, and he again gave bail, conditioned for his appearance in January. On January 12, at the instance of the Commonwealth, there was a continuance to March because "a material witness for the Commonwealth cannot be procured, because of said witness for the Commonwealth being kept away from the trial." On January 19 the defendant was again a fugitive from justice, and a capias for arrest was ordered. On January 24 he appeared and was bailed to the March term. On March 9, on motion of the Commonwealth, there was a continuance to May, it appearing "that a material witness for the Commonwealth cannot be procured because of said witness for the Commonwealth being kept from trial." Bail was again given. At the May term following a continuance was given at the instance of the Commonwealth and for the same reason. At the July term for like reasons the case was continued until September. In September, for like reasons, there was a continuance until November. For the same reason there was a continuance until January, 1932. On January 11, a trial to be had on January 16 was ordered. On January 16 the accused came into court, "and E. M. Stickley, attorney at law, appeared specially before the court on behalf of the said H. C. Rosenberger and moved the court for postponement or a continuance, on the ground that said H. C. Rosenberger had theretofore employed and retained Aubrey G. Weaver, attorney at law, as his counsel, and that said Aubrey G. Weaver had been elected to the Senate of the Commonwealth of Virginia and qualified as such, and was now attending and serving as a member of the Senate at a regular session of the General Assembly of the Commonwealth of Virginia."

Affidavits were filed by W. C. Armstrong, law partner of Senator Weaver, and by the defendant himself. These affidavits show that Mr. Weaver was retained by the accused before the senatorial election, that the senator had had entire charge of this case, and that his partner, Mr. Armstrong, knew nothing about it. In short it appears that Senator Weaver was retained because of his skill and ability in such matters, and was relied upon to conduct the defense.

The court refused a continuance but granted a postponement to January 21, 1932. On that day when the case was called "the accused appeared in person and by counsel," and "by counsel, moved the court for a continuance of his trial," upon grounds heretofore stated, which motion was again overruled. The prisoner was arraigned and pleaded not guilty. A jury was impaneled, and this verdict was returned:

"We, the jury, find the defendant, H. C. Rosenberger guilty as charged in the second count of the within indictment and fix his punishment at confinement in the penitentiary for the term of two years."

The rule in Virginia governing continuances is well settled.

"It has been often repeated by this court, and it is the established rule everywhere, that the granting or refusal of a continuance is always addressed to the sound discretion of the trial court, and to entitle a party to a reversal on that ground it must be clearly shown that the court abused its discretion and that injury resulted to the party complaining from the abuse." Virginia Iron, Coal & Coke Co. Kiser, 105 Va. 695, 54 S.E. 889.

"A motion for a continuance is addressed to the sound, but not arbitrary, discretion of the court under all the circumstances of the case, and the appellate court will not reverse a judgment or decree because of the action of the lower court on such motion, unless the action was plainly erroneous. Abuse of discretion and prejudice to ...