Rosenberger v. Commonwealth

• Decision Date: 17 November 1932
• Citation: 166 S.E. 464
• Parties: ROSENBERGER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

166 S.E. 464

ROSENBERGER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 17, 1932.

Error to Circuit Court, Shenandoah County.

H. C. Rosenberger was convicted of violating the prohibition laws, and he brings error. Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

P. H. Brumback and M. E. Stickley, both of Woodstock, and Weaver & Armstrong, of Front Royal, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

HOLT, J.

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 day 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 has 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. v. 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 reversea 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 the complaining party are essential to reversal." 2 Michie's Dig. Va. & W. Va. Rep. p. 855; Big Sandy, etc., R. Co. v. Ball, 133 Va. 431, 113 S. E. 722; Parsons v. Commonwealth, 154 Va. 832, 152 S. E. 547.

The attendance of this reluctant and important witness so long desired had finally been secured. It appears that without him the commonwealth could not make out its case. This statement was made by the trial judge:

"It is further stated to the court that this witness has now been procured and that his presence at a later time, if this case be con-tinued, will be a matter of doubt and uncertainty, and that the only alternative would be to confine the witness to jail, because he cannot give a satisfactory bond. It also is stated that another witness has been brought to the court from a distant part of the State at no inconsiderable expense, and that his future attendance would be subject to doubt and require further expense."

At the trial Rosenberger was represented by counsel. The case was simple upon its face. The defendant was charged with giving and with selling liquor to a minor. The evidence is not before us, nor is there any record of what then actually took place, and so we may assume that he 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 we cannot go further and assume that different results would have been reached had Senator Weaver tried the case himself, able counsel though he be, or that any counsel could have led the jury to a different conclusion and to a different verdict. Had counsel died when this case was finally set down for trial, there was still time in which to secure the services of others. As we have seen, such services were actually secured.

In Big Sandy, etc., R. Co. v. Ball, 133 Va. 431. 113 S. E. 722, 724, this court, quoting from Virginia Iron, Coal & Coke Co. v. Kiser, supra, said: "The defendant company has not pointed out in its petition for this writ of error, nor is there disclosed in the record, any mismanagement or mistake by the learned counsel who conducted the trial for the defense in the court below, or any injury that resulted to it by reason of the absence of Mr. Cabell, therefore there is no ground whatever upon which to rest this assignment of error."

There is no reason to believe that Senator Weaver would have been more successful than Mr. Cabell might have been; that is to say, if the court committed error (and we hold that it did not) in ordering a trial, that error was harmless, and in no court is the doctrine of harmless error more firmly established than with us.

In Standard Paint Co. v. E. K. Vietor & Co., 120 Va. 595, 91 S. E. 752, 757, Judge Pren-tis said: "Since the act of March 27, 1914, supra, it is apparent that this court should extend the doctrine of harmless error to its logical conclusion, namely, that error is harmless which does not injuriously affect the interests of the party complaining, and that such injury is not presumed, but must affirmatively appear from the record; for that act in simple...