Smith v. Commonwealth

• Decision Date: 11 January 1934
• Citation: 161 Va. 1112
• Parties: CLARENCE SMITH v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1112

161 Va. 1112

CLARENCE SMITH v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 11, 1934.

Present, All the Justices.

1. APPEAL AND ERROR — Appeal or Writ of Error as Matter of Right. — No litigant, except in disbarment proceedings and in appeals from decisions of the Corporation Commission, is entitled to an appeal or writ of error from the Supreme Court of Appeals as a matter of right.

2. APPEAL AND ERROR — Petition for Appeal or Writ of Error — Copy to Be Mailed or Delivered to Opposing Counsel — Rule II(a) of the Supreme Court of Appeals. — Rule II(a) of the Supreme Court of Appeals provides that: "Before any petition for appeal or writ of error is presented to a judge in vacation, or to the court in term, or filed with the clerk of the court, a copy thereof shall be first mailed or delivered to the opposing counsel in the trial court, and the petition shall aver the date of such mailing or delivery." This rule was modeled after subdivision 3, No. 35 (now No. 38), of the Revised Rules of the Supreme Court of the United States. The object of the provision requiring mailing or delivering a copy of the petition to opposing counsel in the trial court is to give him an opportunity, by filing a reply, to aid the court in determining the question whether the petition presents a question or ruling of the trial court which should be reviewed.

3. APPEAL AND ERROR — Rule II(a) of the Supreme Court of Appeals — Jurisdictional Question. — In no sense is the mailing or delivery of a copy of a petition to opposing counsel a jurisdictional question. But the court, or any justice thereof to whom the petition is presented, may refuse to consider the petition until it is shown that a copy has been mailed or delivered.

4. APPEAL AND ERROR — Rule II(a) of the Supreme Court of Appeals — Compliance with the Rule. — Consistent compliance by the bar with this rule would be a great aid to the court in properly disposing of the many cases presented to it. If the court, or justice to whom the petition is presented, is satisfied that the writ should be granted, and that a delay might work a serious hardship to the petitioner, it is not mandatory to defer action until the full ten days allowed opposing counsel to reply have elapsed.

5. APPEAL AND ERROR — Dismissal — Rule II(a) of the Supreme Court of Appeals. — A writ of error should not be dismissed for failure to allege or prove that a copy of the petition was delivered to opposing counsel as required by Rule II(a) of the Supreme Court of Appeals, if the court, or justice to whom the petition is presented, is satisfied that the writ should be granted and that a delay might work a serious hardship to the petitioner. See Hurd Hesse & Hurt, ante, page 800, 172 S.E. 289.

6. WITNESSES — Evidence of Former Conviction — For What Purpose Admissible — What Accused May Show as to the Former Conviction. — The only ground for the admissibility of evidence of a former conviction is to discredit the witness in the case then being tried. To remove that stain, or to weaken its weight, the accused has a right to show the nature of the charge, the mere fact, if it was a fact, that he was convicted on conflicting evidence, and that he had served his time or had been paroled or pardoned by the Governor.

7. WITNESSES — Former Conviction — Former Conviction Obtained by Perjury — Case at Bar. — In the instant case accused was convicted of obtaining money under false pretenses. The Commonwealth, on cross-examination, elicited from the accused the fact that he had been previously convicted of a felony. The trial court rejected the evidence offered by the accused to prove that since the former trial the chief witness against him had made an affidavit admitting that he had committed perjury in his testimony against the accused at the former trial; that after obtaining this affidavit the accused instituted a civil action against the witness, which had been settled out of court by the payment of $1,000.

Held: That the trial court erred in rejecting this evidence.

Error to a judgment of the Corporation Court of the city of Norfolk.

The opinion states the case.

W. L. Devany, Jr., for the plaintiff in error.

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

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

The accused, by this writ of error, is seeking to reverse a judgment and sentence to three years' confinement in the penitentiary for obtaining money under false pretenses.

The Attorney-General moved to dismiss the writ because it was not alleged or proven that a copy of the petition was delivered to the Commonwealth's attorney for the city of Norfolk, as required by Rule II(a) of this court, the pertinent part of which reads thus:

"* * * Before any petition for appeal or writ of error is presented to a judge in vacation, or to the court in term, or filed with a clerk of the court, a copy thereof shall be first mailed or delivered to the opposing counsel in the trial court, and the petition shall aver the date of such mailing or delivery."

The rule in its present form, adopted November, 1929, was modeled after subdivision 3, No. 35 (now No. 38), of the Revised Rules of the Supreme Court of the United States. 28 U.S.C.A., section 354. Before a litigant can secure a writ of certiorari in that court he must convince the court, or one of the justices, that his petition presents a question the court should review, or, as stated by Senator Walsh (Montana), such writs are not "granted as a matter of right," but "as a matter of grace." The petition presents the issues from the point of view of the losing side in the lower court. The object of the rule is to give the winning side an opportunity to present the issues and the rulings of the trial court from its point of view. The question the court, or the justice, must determine is whether or not the case should be reviewed. The reply brief is a great aid to the court in its answer to this question.

In Furness, Withy & Co. Yang-Tsze Ins. Ass'n, 242 U.S. 430, 37 S.Ct. 141, 61 L.Ed. 409, the court said:

"The writ of certiorari was improvidently granted and must be dismissed. We should have denied the petition therefor if the facts essential to an adequate appreciation to the situation had then been brought to our attention. * * *

"* * * We are not aided by oral arguments and necessarily rely in an especial way upon petitions, replies and supporting briefs. Unless these are carefully prepared, contain appropriate references to the record and present with studied accuracy, brevity and clearness whatever is essential to ready and adequate understanding of points requiring our attention, the rights of interested parties may be prejudiced and the court will be impeded in its efforts properly to dispose of the causes which constantly crowd its docket."

Reynolds Robertson in his "Appellate Practice and Procedure in the Supreme Court of the United States," page 64, speaking of the penalty for failure to serve a copy of the petition on opposing counsel, states:

"No case has come to the writer's attention in which a petition for a writ of certiorari has been dismissed for failure to make service. In the recent cases, since the adoption of the present rule, where respondent has represented to the court that he has not been served, or has been only partially served, the court has ordered the petitioner to make service, and the net result of the motion, so far as respondent is concerned, has been merely an extension of time within which to file respondent's brief."

1-5 No litigant, except in disbarment proceedings and in appeals from decisions of the Corporation Commission, is entitled to an appeal or writ of error from this court as a matter of right. Like an applicant for a writ of certiorari from the Supreme Court of the United States, he...