Snyder v. Com.

• Decision Date: 08 September 1961
• Docket Number: No. 5243,5243
• Citation: 202 Va. 1009,121 S.E.2d 452
• Parties: JOHN F. SNYDER, JR. v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 452

121 S.E.2d 452

202 Va. 1009

JOHN F. SNYDER, JR. v. COMMONWEALTH OF VIRGINIA.

Record No. 5243.

Supreme Court of Appeals of Virginia

September 8, 1961.

William G. Creasy; Harvey S. Lutins (T. W. Messick, on brief), for the plaintiff in error.

M. Harris Parker, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: CARRICO

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

This is a companion case to the case of Tasker v. Commonwealth, Record No. 5270, this day decided.

John F. Snyder, Jr., herein referred to as the defendant, was charged in a joint indictment returned against the defendant, Ewell Grant Tasker and E. W. Brizendine, with grand larceny of a diamond ring, the property of Edward E. Foster. The defendant was granted a severance for trial and on April 21, 1960, a jury heard his case and found him guilty of the charge and fixed his punishment at three years in the penitentiary. He was sentenced accordingly.

The case is now before us, on a writ of error granted the defendant, for the determination of the following questions:

1. Whether the conviction of the defendant was illegal and void because he was denied a preliminary hearing.

2. Whether the testimony of Joel Krish, to whom E. W. Brizendine sought to sell the ring alleged to have been stolen was admissible.

3. Whether the evidence was sufficient to sustain the conviction of the defendant.

4. Whether the trial court erred in its rulings on instructions offered by the defendant.

The undisputed facts in the case are these:

Edward E. Foster, the complaining witness, was the owner and sole operator of a small jewelry store on Williamson Road, in the city of Roanoke.

A week or ten days prior to February 26, 1960, the defendant went to Foster's store and engaged him in a conversation concerning a ring the defendant said he had lost. He inquired of Foster if he had seen such a ring, to which Foster replied in the negative.

On the morning of February 26, the defendant and Tasker met at a restaurant operated by the defendant in the city of Roanoke. Around noon the two men went together to 'Billy's Beer Joint' on Salem Avenue, where they met and talked to Brizendine. The defendant had known Brizendine all of his life and had known Tasker for several years.

After leaving 'Billy's Beer Joint,' the defendant and Tasker returned to the defendant's restaurant. Between two and two-thirty o'clock P.M., they went, in the defendant's automobile, to Foster's jewelry store. Upon entering the store, the defendant told Foster he wanted to look at a lady's watch, as a gift for his wife. Foster showed the defendant and Tasker two watches, which were taken from a showcase.

While the defendant and Tasker were examining the watches, Brizendine entered the store. No sign of recognition passed between Brizendine on the one hand and the defendant and Tasker on the other.

Foster turned to Brizendine and said, 'I'll be with you in a minute,' whereupon the defendant told Foster, 'Go ahead and wait on him, we're in no hurry.'

Foster then inquired of Brizendine what he could do for him. Brizendine said he was interested in buying a set of rings for his wife. Foster removed a tray of rings from a showcase to display to Brizendine. They tray contained twelve slots to hold the rings in place, and before displaying the tray to Brizendine, Foster checked and determined that each slot was occupied by a ring.

One of the rings in the tray was the one later alleged to have been stolen. It was described as having a diamond setting of 0.97 of one carat, or 97 points, in a Columbia true fit mounting, a distinctive patented device designed to prevent the turning of the ring on the finger of the wearer. Foster was the only jewelry merchant in the city of Roanoke handling such a mounting. He had paid $525.00 for the ring, and it bore a tag showing its sale price to be $1,500.00.

Brizendine examined a number of rings from the tray, including the Columbia-mounted diamond, which he returned to Foster and which Foster replaced in the tray.

While Brizendine was examining other rings, the defendant asked Foster a question concerning one of the watches, and Foster turned to answer him. The defendant then said, 'Well, we're looking around and we'll be back later.' The defendant and Tasker then left the store.

Foster then returned his attention to Brizendine. The latter handed Foster a set of rings and said, 'Hold these, I'll bring my wife back in a couple of hours; I want her to look at them and I'm going to buy them.' Brizendine then left the store, within thirty to sixty seconds of the time the defendant and Tasker had left.

Foster immediately discovered that the Columbia-mounted diamond ring was missing. He notified the police department of his loss, and furnished the police a description of Brizendine and of the missing ring.

Brizendine, shortly after leaving Foster's store, appeared at the United Pawn Shop in the city of Roanoke. The operator of this shop, Joel Krish, had dealt in rings and diamonds for fifteen years, and had known Brizendine for many years. Brizendine exhibited to Krish a ring containing a diamond, described by Krish as having eighty or ninety points in a Columbia true fit mounting. Brizendine asked Krish what he would give on the ring, and Krish replied that he would allow $300.00. Brizendine became angered at Krish's offer, placed the ring in his pocket and left the store. In a short time, Krish received a telephone call from the police concerning the ring stolen from Foster, and Krish told the police to come to his store, that he had some information for them.

The defendant and Tasker after leaving Foster's store, returned to the defendant's restaurant. After a short interval, they went to 'Billy's Beer Joint' and 'picked up' Brizendine. The three men then proceeded, in the defendant's automobile, to the home of June Fuller, the 'girl friend' of Brizendine. En route, Tasker and Brizendine discussed going to Richmond, because Tasker had some friends in that city.

The defendant did not testify or offer any evidence in his behalf.

The record does not disclose whether the missing ring has ever been recovered. Brizendine was convicted of the theft of the ring, and is now serving a sentence in the penitentiary. Tasker, like the defendant, was convicted as an aider and abettor in the theft.

The defendant first contends that his conviction is illegal and void because he was denied a preliminary hearing, as required by § 19.1-163.1, Code of Virginia, 1950, as amended. This question arose in this case in the following manner:

The defendant was arrested on March 3, 1960, and charged with the theft of the ring. On March 18, 1960, he appeared before the Municipal Court of the city of Roanoke, for a preliminary hearing in connection with the said charge. The Commonwealth presented its evidence, and at the conclusion thereof, the defendant moved to strike the Commonwealth's evidence. The judge of the Municipal Court took this motion under advisement, and as far as the record discloses, has not yet acted on the motion, either to grant or to deny it.

On April 4, 1960, the indictment was returned, upon which the defendant was later convicted by the jury. The final order, overruling the defendant's motion for a new trial and sentencing the defendant in accordance with the jury's verdict, was entered on May 5, 1960.

The defendant raised no objection to the lack of, or the irregularity in, the preliminary hearing, before his trial on the indictment. In fact, the first mention of this point appears in a petition filed by the defendant, in the trial court, on June 21, 1960, forty-seven days after the entry of the final order. This petition prayed that his conviction be set aside and the indictment quashed because he had been denied a preliminary hearing. The petition was denied by the trial court on the grounds that the defendant had made no objections to being tried on the indictment prior to trial and that the petition was filed more than twenty-one days after the final judgment.

Code § 19.1-163.1, relied on by the defendant, reads as follows:

'No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing.'

The defendant contends that the requirement for a preliminary hearing, as set forth in the foregoing section, is jurisdictional, and that objection relating thereto can be raised at any time in the proceedings, or for the first time on appeal, or even by the court itself.

The quoted code section clearly permits the waiver, by a person arrested for a felony, of his preliminary hearing, albeit such waiver must be in writing.

It is a well settled rule of criminal procedure that if an accused may waive a provision concerning the steps to be followed in a criminal prosecution, such provision is procedural, and not jurisdictional. Bowen v. Commonwealth, 132 Va. 598, 602, 111 S.E. 131, 132; Hanson v. Smyth, 183 Va. 384, 390, 32 S.E.2d 142, 144.

It is an equally well settled rule that objection to a procedural defect must be timely made if it is to avail an accused when attacking his conviction, either in the trial court or on appeal. Code, § 19.1-165; Briggs v. Commonwealth, 82 Va. 554, 561; McCue v. Commonwealth, 103 Va. 870, 1006, 49 S.E. 623, 631; 14 Am. Jur., Criminal Law, § 214, p. 917, § 242, pp. 935, 936.

The Supreme Court of the United States in the case of Dowdell and Harn v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.ed. 753, 758, held as follows:

'Objections are made as to the want of proper arrest and preliminary examination of the accused before a magistrate, and that the information was not verified by oath or...