Snead v. Com., 4927
| Decision Date | 04 May 1959 |
| Docket Number | No. 4927,4927 |
| Citation | 200 Va. 850,108 S.E.2d 399 |
| Court | Virginia Supreme Court |
| Parties | GILBERT SNEAD v. COMMONWEALTH OF VIRGINIA. Record |
W. A. Hall, Jr., for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Albertis S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
JUDGE: I'ANSON
Gilbert Snead, hereinafter referred to as the defendant, was convicted of grand larceny on an indictment charging him with statutory burglary and grand larceny and his punishment fixed by the jury at confinement in the state penitentiary for a period of five years. The trial judge overruled a motion for a new trial and sentenced him in accordance with the finding of the jury. To this judgment we granted a writ of error and supersedeas.
The defendant's assignments of error may be summarized as follows:
(1) That the indictment does not charge any crime.
(2) That the indictment does not contain an adequate description of the allegedly stolen personal property.
(3) That the evidence was not sufficient to support a verdict of either grand or petit larceny.
(4) That the court erred in granting the Commonwealth's instruction #3.
Under our view of the case it will not be necessary to quote the language of the indictment or the instruction complained of, since at the outset the defendant is confronted with a motion to dismiss the writ of error and supersedeas for his failure to comply with Rule 5:1, § 3(f) of the Rules of this Court.
The Commonwealth contends that the motion to dismiss should be sustained for the following reasons:
'1. That reasonable notice required by Rule 5:1 § 3(f) of the Rules of this Court was not given to the Attorney for the Commonwealth by counsel for the defendant that he would present a narrative of the evidence to the Judge of the Circuit Court of Albemarle County, Virginia, on June 16, 1958, in the City of Charlottesville, Virginia.
'2. That the Attorney for the Commonwealth was not given reasonable opportunity to examine the narrative of the evidence as required by Rule 5:1, § 3(f).
We have many times said the Rules of this Court must be complied with in order to promote the orderly, fair, and expeditious administration of justice. Lawrence v. Nelson, 200 Va. 597, 598, 106 S.E.2d 618, 620.
Rule 5:1, § 3(f), provides that: '* * * Counsel tendering the transcript or statement shall give opposing counsel reasonable written notice of the time and place of tendering it and a reasonable opportunity to examine the original or a true copy of it.' (Emphasis added.)
Counsel for the defendant delivered a written notice to the Attorney for the Commonwealth at his residence in Charlottesville on June 16, 1958, at 7:00 o'clock, P.M., advising the Attorney for the Commonwealth that he 'will on June 16, 1958, present to the Hon. Lyttelton Waddell Judge -- Cir court of Albermarle Co, a narrative of the evidence in Com. v. Gilbert Snead, sentenced for Grand Larceny Apr. 18, 1958, for his signature, & authentication in order to apply to Supreme Ct of Apps of Va. for Writ of Error & Supersedeas -- will present same to Judge Waddell at his residence in Charlottesville Va June 16-1958.'
It will be noted that the hour for tendering the statement to the trial judge is not set out in the notice.
The certificate of the trial judge reveals that on June 16, 1958, at 7:30 o'clock, P.M., one half hour after notice was received by the Attorney for the Commonwealth, a narrative of the evidence was presented to him; that the last paragraph of the narrative of the evidence was added by him; that he signed the certificate on June 24, which is within the seventy-day period prescribed by the Rules; and that before he signed the narrative statement of the evidence the Commonwealth's Attorney of Albemarle County had an opportunity to examine it and made no objection except as to the sufficiency of the notice.
The Commonwealth contends that what constitutes reasonable notice to opposing counsel of the time and place for tendering a narrative of the evidence to the judge must be determined by the facts of each particular case. It relies on Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321; and Ocean Accident and Guarantee Corporation, Limited v. Haley, 158 Va. 691, 164 S.E. 538.
In Bacigalupo v. Fleming, supra, counsel for the appellant delivered to opposing counsel a transcript of the evidence on March 19, 1957, and informed her that he would present it to the judge on March 22, which was the last day of the sixty-day period prescribed by the Rules. On the next day counsel for the appellee retrned the transcript and informed counsel for the appellant in writing that she had not been given sufficient time to examine it. Counsel for the appellant, on the same day, gave written notice to counsel for the appellee that on March 22 at the designated time and place he would tender the transcript to the trial judge. The transcript was presented on March 22 and the trial judge fixed March 27 as the day for the correction of any errors that might be pointed out and the day on which he would sign the transcript. The transcript was signed by the trial judge on March 27, which was within the seventy-day period allowed by the Rules. We held that under all the circumstances reasonable notice of the presentation of the transcript to the judge had been given opposing counsel and a reasonable opportunity had been given her to examine the transcript. (199 Va. at pp. 835, 836, 102 S.E.2d at pp. 326, 327.)
In Ocean Accident Corp. v. Haley, supra, notice was served upon counsel for the opposite party at 1:18 P.M. that bills of exception would be tendered to the judge for his signature on the same day at 2:45 P.M. Counsel at the time was engaged in the trial of another case but he did appear and object to the signing of the bills of exception on the grounds that he had not received...
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Sullivan v. Little Hunting Park, Inc
...justifiably thought that review in the Supreme Court of Appeals would not be barred by the rule, notwithstanding Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399 (1959), the one case cited below by the Virginia court, relied on here by respondent and yet somehow ignored by the Because '(n......
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Snead v. Smyth, 7964.
...we have reached are supported by the decision of the Supreme Court of Appeals of Virginia in the case of Gilbert Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399. Gilbert Snead is a brother of the present appellant, John Lewis Snead, and they were tried together under identical indictment......
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Sullivan v. Little Hunting Park, Inc.
...tendering the transcript and a reasonable opportunity to examine the original or a true copy of it (Rule 5:1, § 3(f); Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399).' On October 5, 1968, the clerk of this court received from the Supreme Court of the United States a copy of an order dat......
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Dudley v. Florence Drug Corp., 5605
...Rule 5:1, § 3(e) and (f), is mandatory and jurisdictional and a failure to comply with it is fatal to an appeal. Snead v. Commonwealth, 200 Va. 850, 853, 108 S.E.2d 399, 402; Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326; Steingold v. Seaton, 187 Va. 923, 931, 48 S.E.2d 225, ......