Smith v. Commonwealth

• Decision Date: 15 January 1931
• Citation: 155 Va. 1111
• Court: Virginia Supreme Court
• Parties: GARLAND SMITH v. COMMONWEALTH OF VIRGINIA.

Page 1111

155 Va. 1111

GARLAND SMITH v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

January 15, 1931.

Present, Campbell, Holt, Epes, Hudgins and Browning, JJ.

1. CONTINUANCES — Postponement — Whether a Continuance or a Postponement was Asked For — Case at Bar. — In the instant case the bill of exceptions of accused shows that he asked merely for a "continuance." The order of the court read that the defendant moved the court for a continuance until a later day of this term. In the petition for a writ of error it was said that forty-eight hours time was asked for. It was clear that the request was only for a postponement until some later day of the term and not for a continuance.

2. CONTINUANCES — Discretion of Trial Court. — It has been repeatedly held that continuances are within the sound judicial discretion of the trial court. Just punishment long delayed is of little value as a public warning and the Supreme Court of Appeals has steadily upheld trial courts in the exercise of their discretion.

3. CONTINUANCES — Discretion of Trial Court — Continuance Asked for Merely to Delay Trial. — 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. But justice and not speed should be the paramount purpose.

4. CRIMINAL LAW — Speedy Trial — Provision for Prisoner's Protection. — The constitutional guarantee of a speedy trial carried into section 4926 of the Code of 1919 is for the prisoner's protection, and as against him is no warrant for undue haste.

5. CONTINUANCES — Postponement — Time for Counsel to Prepare — Case at Bar. — The instant case was a prosecution for murder. When accused was arrested he was taken immediately to Richmond and was out of touch with his people. Relatives of accused employed an attorney of wide experience to defend him. A short time before the trial the sister of this attorney was taken suddenly and desperately ill, and he sent his son and partner to represent himself and the accused. The son laid the foregoing facts before the trial court and said that he had had no opportunity to interview his client and had not talked with the witnesses, and petitioned the court to grant him time for preparation.

Held: That the son' request that he be given two or three days in which to familiarize himself with the situation and to prepare and present his evidence was not unreasonable and should have been granted.

6. CONTINUANCES — Absence of Counsel. — Unavoidable absence of counsel is held to be ground for a continuance.

7. CONTINUANCES — Postponement — Case at Bar. — In the instant case, a trial for murder, the record did not support a motion for a continuance but it was not asked for. A continuance would have involved a delay of two months or more. The request was for a postponement to some later day in the current week and should have been granted.

8. HOMICIDE — Alibi — Right to Call for Evidence. — In the instant case, a trial for murder, some of the Commonwealth's witnesses claimed to have recognized the accused as the assailant at the time of the homicide. Accused claimed that at the time of the homicide he was at his old home in North Carolina, 300 miles distant from the place of the trial, and that witnesses from that community, if present, would testify to that effect, and asked for a delay in the trial of two or three days.

Held: That if accused was given no real opportunity to secure this evidence, the constitutional guaranty which gave to him the right to call for evidence in his favor would have been denied him.

9. CONTINUANCES — Postponements not Governed by Rules Applying to Continuances. — In the instant case accused asked for a postponement to a later day of the term in order that his counsel might have time to prepare and that he might obtain witnesses from his old home in North Carolina, 300 miles distant. As a postponement and not a continuance was asked for the authorities as to continuances do not control the case.

10. HOMICIDE — Alibi — Accused Entitled to all Evidence in Support of His Alibi — Case at Bar. — In the instant case, a prosecution for murder, the defense of accused was an alibi. Accused claimed that at the time of the murder he was at his old home in North Carolina, 300 miles from the place of trial. The indictment was returned one day and set then for trial on the next. The alibi, if sustained, would, in all probability, have to rest upon the evidence of his Carolina neighbors, who, as a physical fact, could not possibly have been present unless they had come by airplane. Some witnesses did testify in support of this alibi, but accused was entitled to have presented like evidence from others if he could secure it.

11. HOMICIDE — Continuance — Postponement — Absence of Witnesses. — A man who is indicted and whose home is 300 miles from the point of trial and who sets up an alibi which must be proven by his neighbors, should be given more than twenty-four hours in which to produce his witnesses. Accused upon the record was not entitled to a continuance, as he had filed no affidavit, but he was entitled to have the hearing postponed.

12. HOMICIDE — Instructions — Instructions Read in Connection with the Evidence — Killing Done with Deadly Weapon is Prima Facie Murder — Harmless Error. — An instruction "that every killing done with a deadly weapon in the previous possession of the accused is prima facie murder in the first degree" is erroneous as a homicide is at times accidental and at times is committed in heat of passion or in self-defense. But in the instant case the error was harmless, as the instructions are to be read in connection with the evidence to which they apply, but on a retrial of the case the instruction should not be given.

13. INSTRUCTIONS — Standardized Instructions. — It may be said that the trial courts are not infrequently at fault in failing to give precisely in their usual form approved instructions that in a measure have become standardized.

14. REASONABLE DOUBT — Repetition of Instructions. — In the instant case, a prosecution for murder, an instruction on reasonable doubt was tendered and refused. The instruction itself was unobjectionable but that subject had been covered by other instructions and so it was properly rejected. When a court has once, in apt language, told the jury that the burden is upon the Commonwealth to prove the guilt of the accused beyond all reasonable doubt, that is enough. Reiteration of this elementary proposition is neither helpful nor desirable.

15. REASONABLE DOUBT — Instructions — Attempts to Define — Abiding Conviction of Guilt. — Attempts to define reasonable doubt usually cloud rather than clarify the issue. In the instant case the court instructed the jury that if, after considering all the evidence, they had an abiding conviction of the guilt of the accused, then they were satisfied beyond a reasonable doubt. This instruction was an excerpt from one of the instructions given in McCue's Case, 103 Va. 870, 49 S.E. 623. While it would have been better to have given the whole instruction from which it was taken, in the light of other instructions in the case it could not be said that this instruction either confused or misled the jury.

16. WITNESSES — Impeachment — Conviction of Crime or Misdemeanor. — It is not proper to ask a witness if he has been indicted, and it is not proper to show that he has been convicted of an ordinary misdemeanor, but it may, for purposes of impeachment, be shown by the witness himself that he has been convicted of felony or of perjury.

Appeal from a decree of the Circuit Court of Mecklenburg county.

The opinion states the case.

Gordon B. Ambler, for the plaintiff in error.

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

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

Garland Smith, twenty-two years old, is a native of Catawba county, North Carolina, and resided there until he came with his parents in September, 1929, to Mecklenburg county, Virginia, 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 gun shots 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 of 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...