Smith v. Commonwealth

• Decision Date: 21 September 1922
• Citation: 113 S.E. 707
• Parties: SMITH. v. COMMONWEALTH.
• Court: Virginia Supreme Court

113 S.E. 707

SMITH.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Convicted; Conviction.]

Error to Circuit Court, Dickenson County.

Proceeding by the Commonwealth against J. C. Smith. Judgment removing defendant from the office of commonwealth's attorney, and he brings error. Reversed, and final judgment entered.

This is a proceeding under section 2705 of the Code of 1919, having for its object the removal of the plaintiff in error, J. C. Smith (who will be hereinafter referred to as the accused), from the office of commonwealth's attorney of Dickenson county, to which office he bad been elected, and which, after duly qualifying, he held at the time such proceeding was instituted.

The complaint in the circuit court charged, among other things, that the accused, while acting as commonwealth's attorney for said county, after his term of office had commenced, and he had qualified as such officer according to law, was "convicted of an act constituting a violation of a penal statute involving moral turpitude, " in this, that the accused, on the—— day of May, 1921, in the District Court of the United States for the Western District of Virginia, at Big Stone Gap, upon an indictment duly returned by a grand jury lawfully impaneled, was convicted of persuading, inducing, enticing, and coercing a certain woman, whose name is set forth in the complaint, to go from one place to another, also alike set forth (being an interstate transaction), for the purpose of debauchery and other immoral purposes, contrary to the form of the statute of the 'United States in such case made and provided; which statute is commonly known as the "White Slave Act" (U. S. Comp. St. §§ S812-8S19).

There was a trial by jury in the case in judgment, which resulted in a verdict finding the accused "guilty of having been convicted of an act constituting a violation of a penal statute involving moral turpitude, as charged in the complaint. * * * " Thereupon the circuit court entered the judgmentunder review, removing the accused from said office and declaring such office vacant, and the accused brings error.

The proof in the case was that, on the trial of the accused in the said federal court upon the charge aforesaid in that court of the aforesaid offense of a violation of the said federal statute, he pleaded "not guilty, " and there was a verdict of the jury therein duly impaneled, returned on May 18, 1921, finding the accused guilty of-such offense; tbat the case was continued over until the next day; that on the next day, May 19, 1921, the accused moved the said federal court to set aside such verdict; and that thereupon that court took time to consider such motion, and continued the case to the first day of the next regular term. And it appeared from the proof that the proceeding in the case in judgment was instituted and that said judgment was entered therein while the federal court bad under consideration the aforesaid motion to set aside the said verdict returned in that court; so that, at the time said procedure was instituted, and when final judgment was entered in the state court, no judgment had been entered convicting the accused of said offense of violation of the aforesaid federal statute.

On the trial of the case in judgment the court instructed the jury, in substance, that the verdict of the jury in the federal court of itself constituted a conviction of the accused of the offense charged against him in that court and in the aforesaid complaint, without the verdict being followed by any judgment of the federal court convicting the accused of such offense.

A. A. Skeen, of Clintwood, and E. M. Fulton, of Wise, for plaintiff in error.

W. A. Daugherty, of Pikeville, Ky., Chase & McCoy and Sutherland & Sutherland, all of Clintwood, and O. M. Vicars, of Wise, for the Commonwealth.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

In the view we take of the ease, it is necessary for us to consider and determine only one question raised by the assignments of error, and that is this:

(1) What is the meaning of the word "convicted, " contained in the statute (section 2705 of the Code), under which the accused was removed from office in the case in judgment, as applicable to such case? Is its meaning satisfied merely by the finding by the jury of a verdict of guilt; or does it require a judgment of conviction of the offense?

The statute (section 2705 of the Code), so far as material, is as follows:

"The circuit courts of counties * * * shall have power to remove from office all state. county * * * officers elected or appointed * * * who shall have been convicted * * * of any act constituting a violation of any penal statute involving moral turpitude."

We are of opinion that, as applied to a case such as that in judgment (where the accused pleaded not guilty), the word "convicted" in the statute in question means convicted by judgment, and requires a judgment of conviction, in addition to the verdict of the jury.

The question is an open one in this jurisdiction, but we find the following holdings in other jurisdictions:

In Faunce v. People, 51 111. 311, the statute involved provided that "each and every person convicted" of certain crimes mentioned "shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, of voting at any election, of serving as a juror and of giving testimony." In the opinion of the court this is said:

"This presents the question, What is a conviction? Is it the verdict of guilty, or is it the sentence or judgment rendered on such a verdict? * * * An examination of the adjudged cases in the various states of the Union, where substantially the same laws are in force, will show that it is not the commission of the crime, nor the verdict of guilty, nor the punishment, nor the infamous nature of the punishment, but the final judgment of the court that renders the culprit incompetent."

In Commonwealth v. Lockwood, 109 Mass. 325, at page 329 (12 Am. Rep. 699), the word "conviction" is said to have the meaning of conviction by judgment of the court in the provision of the Constitution of Massachusetts, which is as follows:

"No person shall ever be admitted to hold a seat in the Legislature or any office of trust or importance under the government of this commonwealth, who shall in the due course of law have been convicted of bribery or corruption in obtaining an election or appointment"—citing Case of Falmouth, Mass. Election Cases (Ed. 1853) 203.

And the authorities are very numerous and practically unanimous in their holding to the effect that, under statutes disqualifying persons from testifying as witnesses who have been convicted of crimes mentioned in the statute, the disqualification does not arise upon the mere conviction of the crime by the verdict of the jury, but only where there has been a judgment of conviction, without which, as is uniformly held, there has been no conviction within the meaning of such statutes. 1 Bish. New Cr. Law (8th Ed.) § 975; 7 Am. & Eng. Ency. L. (New Ed.) pp. 498-502, and note 1 on page 502; People v. Whipple, 9 Cow. (N. Y.) 707; Fitch v. Smallbrook, T. Raym. 32; Rex v. Castell. S East, 77; State v. Damery, 48 Me. 327; Gibbs v. Osborn, 2 Wend. (N. Y.) 555, 20 Am. Dec. 649; Dawley v. State, 4 Ind. 128- Commonwealth v. Gorham, 99 Mass. 420 Marion v. State, 16 Neb. 349, 20 N. W. 2S9 Bishop v. State, 41 Fla. 522, 26 South. 703 16 C. J. 1341 (3).

In Bish. New Cr. Law (8th Ed.) § 975, just cited, this is said:

"Judgment necessary.—A mere plea or verdict of guilt works no infamy, for until judgment it has not reached the conclusion of guilt. So that this disqualification [to be a witness], like common-law forfeiture, does not come from the mere crime, or the mere conviction of it, or the punishment, but from the final judgment of the court. Until judgment, the accused or indicted person is competent to testify"—citing numerous cases in England as well as in the United States.

There is the same practically unanimous holding of the authorities where the statute disqualifies from voting persons convicted of crimes mentioned in the statute. Gallagher v. State, 10 Tex. App. 469; Egan v. Jones, 21 Nev. 433, 32 Pac. 929; People v. Fabian, 192 N. Y. 443, 84 N. E. 672, 18 L. R. A. (N. S.) 684, 127 Am. St. Rep. 917, 15 Ann. Cas. 100.

By the great weight of authority there is the same holding as to the necessity of a judgment of conviction to bring the case within the meaning of "convicted" or "conviction" in statutes imposing any punitive consequences as the result of the conviction of the offense mentioned in such statutes. See, for such holding, Schiffer v. Pruden, 64 N. Y. 52, where the statute provided that "a(wife convicted of adultery" shall not be entitled to dower; Rex v. Turner, 15 East, 570, where the statute allowed costs, etc., against a defendant prosecuting a certiorari, "if he is convicted;" Burgess v. Botefeur, 7 M. & G. 481, 49 E. C. L. 481, 504, where the statute imposed a certain penalty upon the overseers of the poor in case of any person being "convicted" of keeping a disorderly house in the parish; 1 Hale, P. C. 680; Smith v. Commonwealth, 14 Serg. & R. (Pa.) 69, where the statute increased the punishment of persons convicted of a second offense. '

In commenting on a statute against the forging...