Smith v. Commonwealth

• Decision Date: 15 January 1931
• Parties: SMITH. v. COMMONWEALTH.
• Court: Virginia Supreme Court

156 S.E. 577

SMITH.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 15, 1931.

Error to Circuit Court, Mecklenburg County.

Garland Smith was convicted of murder, and he brings error.

Reversed and remanded for new trial.

Gordon B. Ambler, of Richmond, for plaintiff in error.

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

HOLT, J.

Garland Smith, 22 years old, is a native of Catawba county, N. C, and resided there until he came with his parents in September, 1929, to Mecklenburg county, Va., to live upon a farm which they had rented.

On Sunday, December 29, 1929, Bernard A. Puryear, a deputy sheriff, and officers J. T. Chaney, Mack Tuck, Stover Terry, C. O. Mullins, and J. A. Hutchins, raided a still near Boydton and arrested upon that occasion W. J. Smith, his father, R. K. Smith, his uncle, and Burton Smith, his brother. After the still was destroyed, the party with their prisoners started down what is described as a "plantation road." The procession moved forward "sheep fashion, " Mullins leading, followed by Puryear and Tuck. Next came the prisoners, and the procession was brought up by Hutchins and Terry. From ambush two gunshots were fired in rapid succession, fatally wounding Puryear and Tuck.

Garland Smith about this time returned to his North Carolina home, and was arrested in the adjoining county of Lincoln on January 25, 1930. He was brought back to Mecklenburg county, and by order of Hon. E. W. Hudgins, then circuit judge there, was, in the interests of peace and good order, remanded for safe-keeping to the custody of the sheriff of Henrico county to be kept "until he is wanted at the February term, 1930, for trial." This vacation order bears date January 29, 1930.

The circuit court of Mecklenburg county convened in regular session on Monday, February 17, 1930, to which term a special grand jury had been summoned. It returned an indictment on that day charging Garland Smith with the murder of Bernard A. Puryear. Trial was set down for the 18th. A jury was impaneled on the 18th, and the case was adjourned over until 10 o'clock on the 19th. Evidence was heard on the 19th, and on the 20th this verdict was returned:

"We, the jury, find the defendant, Garland Smith, guilty of murder in the first degree and fix his punishment to be death."

It was confirmed by the trial court on the same day. Execution was set for June 2, 1930, and the prisoner was remanded to the custody of the sheriff of Henrico county for safe-keeping.

For reason which will hereafter appear, we shall not undertake to discuss the evidence or its sufficiency, but, to understand the issues, we should know that some of the commonwealth's witnesses claim to have recognized Garland Smith as the assailant at the time of the shooting. For the accused it is contended that he was then in North Carolina.

Before arraignment on the 18th, the accused asked that the trial be postponed. His bill of exceptions shows that he asked for a "continuance", but his written petition in support of this motion asks that "the trial be delayed until some day later this week." The order of the court entered on February 18, 1930, reads: "The defendant, by counsel, moved the court for a continuance until a later day of this term, which motion the court overruled and the defendant excepted." In the petition for a writ of error it is said that 48 hours' time was asked for. It is clear that the request was only for a postponement until some later day in the term, and it is probable that his written petition filed with his motion for a continuance accurately states the indulgence sought. When Smith was arrested, he was taken, as we have seen, immediately to Richmond, and so was not in touch with his people either at his old home in North Carolina or at his new home in Virginia. Mr. A. A. Whitener, a North Carolina attorney of wide experience, was retained by relatives of the accused to defend him. A short time before the trial Mr. Whitener's sister was taken suddenly and desperately ill. In that emergency he sent his son and partner, L. A. Whitener, to represent himself and the accused. This son, in a petition for time, laid the foregoing facts before the court. He said that he had had no opportunity to interview his client and had not talked with the witnesses. The court's ruling was:

"It appeared that the accused had been confined in Richmond since February 1, 1930, and that the accused had had ample time in which to employ counsel and yet he had not seen fit to employ counsel until only a few days before the trial; that it was no ground for a continuance and that it is evident from the statement of counsel that even Mr. A. A. Whitener had only been spoken to a very short time before the trial and that the fact that counsel had only recently been employed, although the accused had had ample time to employ counsel and ample opportunities so to do, rendered this motion for a continuance not sufficient grounds for granting a continuance."

This Is not a case in which a man had employed two lawyers. The elder Whitener alone was retained, and retained presumably because of his experience as a criminal lawyer. In the emergency which presented itself he was unable to represent his client, and so did the best he could. He sent his son.

Code, § 4893, provides that felony cases shall be tried at the term in which the indictment is returned, unless good cause for a continuance is shown, while the Bill of Rights, | 8, of the Constitution of Virginia, secures to the accused a fair and impartial trial, and gives to him the right "to call for evidence in his favor."

It has been repeatedly held that continuances are within the sound judicial discretion of the trial court. Cremeans v. Commonwealth, 104 Va. 860, 52 S. E. 362, 363,

2 L. R. A. (N. S.) 721. Many cases on this subject are cited in annotations to Hewitt v. Commonwealth, 17 Grat. (58 Va.) 627. Just punishment long delayed is of little value as a public warning, and so we have steadily upheld trial courts in the exercise of their discretion; nor do we for a moment forget the importance of speed in the disposition of the docket. A prompt trial should be had, and any motion for a continuance which savors of delay or of a purpose to evade trial should not be tolerated. An ideal system of laws would be one In which speedy justice is administered, but justice and not speed should be its paramount purpose. Its even-handed administration "is a part of ordered life and justice and the long still grasp of law." Clamor should find no echo in its administration.

In Cremeans' Case, Judge Whittle said: "* * * The wide discretion vested in trial courts in that respect must be exercised with due regard to the provisions of the Bill of Rights, which secure to one accused of crime a fair and impartial trial, and to that end safeguard his right 'to call for evidence in his favor.'" In Myers v. Trice, 86 Va. 835, 11 S. E. 428, 430, the court said: "* * * If there is no sufficient reason to induce the belief that the alleged ground of the motion is feigned, a continuance should be granted, rather than to seriously imperil the just determination of the cause by refusing it." John Brown's Case, Am. Bar. Asso. Journal, Dec. 1930.

Of course, the constitutional guaranty of a speedy trial carried into section 4926 of the Code 1919, as amended by Acts 1928, c. 16, is for the prisoner's protection, and, as against him is no warrant for undue haste.

Whitener, Sr., was, as we have seen, retained as counsel. He had prepared the case, and his son was relatively unfamiliar with it. The son's request that he be given 2 or 3 days in which to familiarize himself with the situation and to prepare and present his evidence was not unreasonable. Unavoidable absence of counsel has been held to be ground for a continuance. Hook v. Nanny, 4 Hen. & M. (14 Va.) 157,...