Slayton v. Commonwealth

• Decision Date: 10 June 1946
• Citation: 185 Va. 371,38 S.E.2d 485
• Court: Virginia Supreme Court
• Parties: SLAYTON et al. v. COMMONWEALTH.

185 Va. 371

38 S.E.2d 485

SLAYTON et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 10, 1946.

Error to Circuit Court, Campbell County; Charles E. Burks, Judge.

Lloyd E. Slayton, Lee R. Carter, Lee McDaniel, and Junior Lanier were convicted of perjury, and they bring error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Williams, Miles & Williams, of Danville, and Stowers & Stowers, of Altavista, for plaintiffs in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

The factual background of this case is the same as that of the companion case of Slayton v. Commonwealth of Virginia, 38 S.E.2d 479, and need not be again stated. It will be recalled, from the facts there related, that on November 23, 1945, Lloyd E. Slayton, Lee R. Carter, Lee McDaniel, and Junior Lanier, who by common consent were tried together, were convicted by a jury of perjury for having sworn falsely in a proceeding before the trial justice of Campbell county. The proceedings in this perjury trial are now before us on a writ of error awarded to the joint judgment entered upon the several verdicts of conviction.

The Commonwealth proved that on July 6, 1945, in a proceeding before the trial justice in which Slayton was on trial for driving his car on June 23, after his permit had been suspended, the several plaintiffs in error here, Slayton, Carter, McDaniel, and Lanier, after each had been duly sworn, solemnly testified that at the time in question the car was not being driven by Slayton, but was being driven by Carter.

The Commonwealth submitted clear and convincing proof that this testimony was false. J. H. Barnes, the State police officer who made the arrest, testified that Slayton was actually driving the car. Shirley Hedrick, an occupant of the Slayton car at the time, likewise testified that Slayton, and not Carter, was driving. The incident occurred in broad daylight and the parties were well known to each other.

It was further shown that Lanier signed a written confession that his testimony was false, that he was not a witness to the incident, and knew nothing whatsoever about it. He made a verbal confession to the same effect to the Commonwealth's attorney of Campbell county. While Lanier later repudiated the written confession, claiming that it was given under fear and duress, he in no manner retracted the confession which he had made to the Commonwealth's attorney.

It will thus be seen that there was ample evidence before the jury to warrant the verdict of conviction as to each accused. Indeed, the sufficiency of the evidence is not here challenged.

The plaintiffs in error make only two contentions before us:

(1) The trial court should have granted their petitions for a change of venue; and

(2) The acquittal of Slayton of the charge that he was driving the car at the time in question "barred and estopped" the Commonwealth from prosecuting him and the other plaintiffs in error on the charge that their testimony, given at the trial, was false.

Each of the defendants filed a separate petition, sworn to, which alleged, in substance, that the circuit court, in affirming the trial justice's action in revoking the suspended sentence to which Slayton was subject, announced "in open court, " "in the presence of sundry citizens of Campbell county, " that notwithstanding Slayton's acquittal by the jury of the charge of driving the car at the time in question, it was of opinion, upon the evidence adduced, that he was actually driving, and that he (Slayton) was guilty of perjury in testifying to the contrary; that a finding of the circuit court to the same effect was embodied in its formal orders affirming the revocation of the suspended sentence and refusing to reopen the same;¹ that the expression by the court of the opinion that Slayton was guilty of perjury was tantamount to an expression of opinion that each of the other defendants was likewise guilty of perjury; and that "because of the foregoing facts a strong and adverse sentiment and opinion was created and is existing in the minds of those who heard said statements or saw said orders, or to whom the same may have been communicated, and (that) this, coupled with the fact that the court, as aforesaid, is convinced of the guilt of this petitioner on the charge of perjury for which he is to be tried and which is now pending before the court, and has so expressed himself, the petitioner respectfully submits that he verily believes it is impossible for him, under these adverse circumstances, to obtain in this venue and forum a fair and impartial trial of his cause, * * *."

While the formal orders entered by the circuit court in disposing of the revocation of the suspended sentence are attached to the petitions, no affidavits were filed or evidence adduced in support of the other allegations.

It will be observed that the petitions ask for a change of venue on two grounds: First, the disqualification of the judge himself because of his "firm and expressed opinion" of the guilt of each defendant "of the perjury charge which is now pend-ing" against him; and second, the creation in the community by the remarks and attitude of the judge of "a strong and adverse sentiment which makes it, as the petitioner verily believes, " impossible for him to obtain "a fair and impartial trial of his cause" in this venue.

While the claim of the disqualification of the judge does not seem to have been seriously pressed in the trial court, and is not mentioned in the brief of the plaintiffs in error, the matter is of sufficient importance to merit our attention.

It is well settled that a judge is not disqualified to sit in a criminal case because in the disposition of a matter arising out of the same facts he has formed or expressed an opinion as to the guilt of the accused. 30 Am.Jur., Judges, § 76, p. 786; 22 C.J.S., Criminal Law, § 195, p. 307; 45 L.R.A., N.S., 511, note; 42 Am.St.Rep. 197, Note.

Frequently, in the disposition of cases, both civil and criminal, a judge is called upon to form and express an opinion upon a matter or issue which may come before him in a subsequent proceeding arising out of the same state of facts. The courts are practically unanimous in the view that neither the forming nor the expression of such a conclusion, under such circumstances, disqualifies a judge in the subsequent matter, particularly where the issue of fact in the latter proceeding is to be determined by a jury. 30 Am.Jur., Judges § 76, p. 786; 22 C.J.S., Criminal Law, § 195, p. 307, and cases there cited; Heflin v. State, 88 Ga. 151, 14 S.E. 112, 30 Am.St. Rep. 147; State v. Baldwin, 178 N.C. 687, 100 S.E. 348, 10 A.L.R. 1112; Kreling v. Superior Court of Los Angeles County, 25 Cal.2d 305, 153 P.2d 734; State v. Taw-ney, 81 Kan. 162, 105 P. 218, 219, 135 Am. St.Rep. 355; State v. Williams, 197 Iowa 813, 197 N.W. 991, 993; Craven v. United States, 1 Cir., 22 F.2d 605, 607, 608.

Heflin v. State, supra, a leading case, is strikingly similar to that before us. Heflin was indicted for perjury, alleged to have been committed upon the trial of a criminal case in which he was a witness. When the perjury charge came on to be heard, Heflin moved for a disqualification of the judge on the ground that in his disposition of the preceding case the judge had expressed the view that he (Heflin) had committed perjury. This motion was overruled and Heflin was convicted. In disposing of the contention that the judge was disqualified to sit in the perjury case, the court said (14 S.E. at page 116):

" * * * There is certainly no law which renders it a disqualification per se to try an indictment for perjury, that the judge is the same who presided at the trial in which the alleged perjury was committed, and also at the trial of another witness who testified in the first case. It can make no difference that the judge had thus become convinced of Heflin's guilt because the opinion of the presiding judge as to the guilt or innocence of the prisoner, however that opinion may have been formed, does not unfit him for discharging his judicial duties with the most complete fairness and impartiality. These duties are exactly the same, whether the accused is guilty or innocent, and upon that question the judge has no deciding power, and is not permitted to intimate to the jury his opinion. That all his functions may be duly exercised, irrespective of his own opinions, is taken by the law for true. * * * It could hardly be expected that from hearing all the evidence he would not form some opinion of his own as to the actual guilt or innocence of the person on trial; but the law cares not for this, and is not so absurd as to make it work a disqualification to preside throughout the trial. * * *"

In State v. Baldwin, supra, it was held that a remark of the judge, in passing sentence upon one person convicted of crime, implying the guilt of the accused and another person subsequently tried for a similar offense, growing out of the same state of facts, was not a ground for a new trial of the latter person in the absence of proof that the remark of the judge had been heard by or communicated to the jury.

In State v. Tawney, supra, it was held that the fact that the court, in approving a verdict and pronouncing sentence at a former trial of the defendant upon the same charge, expressed an opinion of thedefendant's guilt, does not of itself indicate prejudice.

In the recent case of Kreling v. Superior Court of Los Angeles County, supra, the highest court of California, after reviewing many authorities on the subject, held that expressions of opinion uttered by a judge in what he conceives to be the discharge of his official duties, are not evidence of bias or prejudice warranting a change of venue in a subsequent proceeding arising out of the same matter.

In the case at bar, in passing upon the sufficiency of the...