Tucker v. Commonwealth

• Decision Date: 12 January 1933
• Citation: 159 Va. 1038
• Parties: ALBERT TUCKER v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1038

159 Va. 1038

ALBERT TUCKER v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 12, 1933.

Present, All the Justices.

1. CONTINUANCES — Motion to Postpone Hearing in Order that Counsel May Make Preparation for Trial — Motion Addressed to Sound Discretion of Trial Court. — A motion to postpone the hearing of a criminal case for a few days in order that counsel might make preparation for trial is addressed to the sound discretion of the trial court, and only when the record shows that there has been an abuse of this discretion will the Supreme Court of Appeals interfere with its ruling.

2. CRIMINAL LAW — Preparation for Trial — Consultation with Counsel. — A person charged with a crime is entitled to consultation with his attorney and a reasonable time in which to prepare the case for trial; denial of these rights is a denial of a fair and impartial trial. Due preparation includes a reasonable opportunity to interview witnesses for the accused.

3. CONTINUANCES — Motion to Postpone Hearing in Order that Counsel May Make Preparation for Trial — Motion Addressed to Sound Discretion of Trial Court — Case at Bar. — In the instant case counsel for the accused asked for a postponement of the hearing for a few days in order that counsel might make preparation for trial. The trial court refused the postponement. Counsel first employed by the accused had retired from the case because accused had threatened or attempted to intimidate the chief witness for the Commonwealth, and the brother of accused had sought to bribe this witness. Former counsel for the accused gave the counsel for the accused the full benefit of his preparation, including the written evidence taken at the preliminary hearing. The record showed that every eye witness of the crime was called, either by the Commonwealth, the court, or the accused, and that they were fully examined and cross-examined.

Held: That in the absence of affirmative evidence showing that the accused had been prejudiced, it could not be said that the trial court had abused its discretion in refusing the postponement.

4. HOMICIDE — nstructions — Second Degree Murder and Voluntary Manslaughter — Case at Bar. — In the instant case, a prosecution for homicide, the court in instruction No. 1 instructed the jury that every homicide with a dangerous weapon in the previous possession of the slayer is presumed to be murder in the second degree, and the burden is upon the Commonwealth to raise it to murder in the first degree, and upon the defendant to prove that the killing was justifiable, or in self-defense. By instruction No. 7 the jury was told that in the event they found the accused guilty of murder they should state the degree and fix the punishment within the limits prescribed by the statute for that degree, and then stated the punishment prescribed for the different degrees of murder.

Held: That the vice of these instructions was in the failure of the court to state in instruction No. 1 that the burden was on the accused to reduce the presumption of murder in the second degree to voluntary manslaughter, and in instruction No. 7 the failure to tell the jury that in the event they should find the accused not guilty in either degree they could find him guilty of voluntary manslaughter and fix the punishment prescribed by statute therefor.

5. HOMICIDE — Murder — Involuntary Manslaughter — Whether Killing Was Murder, Manslaughter, or Self-Defense for Jury — Instructions — Case at Bar. — In the instant case it was for the jury to say whether the killing was murder, manslaughter, or self-defense. The testimony introduced by the defendant, if true, established a clear case of justifiable homicide. In other words, the evidence would have supported a verdict of either murder, voluntary manslaughter, or acquittal. By the instructions given, the jury was forced to find the accused guilty of murder or not guilty of any crime.

Held: That this was prejudicial error.

6. HOMICIDE — Murder or Justifiable or Excusable Homicide — Refusal of Trial Court to Instruct on Manslaughter. — If the evidence introduced by the prosecution established murder and the evidence in behalf of the accused, if believed, established justifiable or excusable homicide, the refusal of the trial court to give an instruction on manslaughter is reversible error.

7. HOMICIDE — Sections 4918, 4920 and 4393 of the Code of 1919 Read Together as in Pari Materia. — Section 4918 of the Code of 1919 providing how accused found guilty of only part of offense charged shall be sentenced; section 4920 of the Code of 1919, providing that on an indictment for felonious homicide the jury may find the accused not guilty of the felony, but guilty of involuntary manslaughter; and section 4393 of the Code of 1919, defining murder in the first and second degree, are in pari materia and should be read together.

8. HOMICIDE — Murder — Conviction of a Less Offense. — A man may be indicted for murder in the first degree by the various means embraced in the statute, the evidence adduced may tend to the proof of the offense named in the indictment and none other, and yet the jury, acting under the discretion with which they have been clothed by the law, may find the offender guilty of a less offense.

Error to a judgment of the Corporation Court of the city of Lynchburg.

The opinion states the case.

A. S. Hester, for the plaintiff in error.

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

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

Albert Tucker was convicted of murder in the second degree and sentenced to eighteen years in the penitentiary. In his petition for a writ of error he complains of several rulings of the trial court, only two of which merit consideration.

The first error assigned is to the refusal of the court to postpone the hearing a few days in order that counsel might make preparation for trial. Such motions are addressed to the sound discretion of the trial court, and only when the record shows that there has been abuse of this discretion will this court interfere with its ruling.

The facts and circumstances under which the motion was made are as follows: About midnight May 30, 1931, one D. H. Armistead was shot and killed by the accused, a colored man, in a place of business operated by the accused and his brother, James Tucker. When the officers arrived at the place shortly after the killing, the accused and his brother gave them the names of six men whom they claimed were the only persons present when the shooting occurred. Subsequently, the officers were informed that one James Claxton, whose name was not mentioned by the accused and his brother, was also an eyewitness to the killing.

After the accused was arrested, he employed as his counsel Mr. Royston Jester, Jr., of the Lynchburg bar. At the preliminary hearing Mr. Jester appeared with a court reporter and all the evidence introduced was preserved. James Claxton was not present at this hearing. It seems that soon after the shooting, either before the preliminary hearing or shortly thereafter, the accused sent for Claxton and said to him, "you guit going around here drinking liquor and telling your damn lies about this thing; you weren't even in the house when the shooting was done." Claxton was also warned by the accused that he had better get away from Lynchburg, which warning he heeded and left for West Virginia. A police officer of the city of Lynchburg went to West Virginia, saw Claxton and induced him to return for the purpose of testifying in this case. After his return, the accused, who was on bail, saw him and told him that he had the case beat unless the Commonwealth secured additional witnesses, and, with a foul oath, added that he had killed a white man and he would "kill a nigger the same way." Claxton left the accused under the impression that he was not going to testify against him. A few days thereafter the accused saw Claxton and again the subject of his testimony was discussed.

The indictment was returned by the grand jury on the 6th day of July and the case was set for trial on the 10th. On the return of the indictment the accused was confined in jail and there remained until the day of trial.

The Commonwealth's attorney was informed of threats made to its witness, James Claxton, and took the precaution to have him watched so that he would not thereafter be tampered with. I further appears that on July 7th the officers caught James Tucker and Silas Flood offering James Claxton money to leave the State and not testify in the case. They were immediately arrested, charged with contempt of court, and their trial set for the next day, July 8th, at three, p.m. As soon as Mr. Jester, attorney for the accused, was informed that the brother of his client was attempting to bribe the Commonwealth's witness he notified the court and the accused that he would retire from the case. Mr. A. S. Hester, of the Lynchburg bar, was called to the defense of James Tucker and Silas Flood and as soon as he was employed he had the contempt charge against these parties continued from the afternoon of July 8th to the morning of July 9th. During this interview with James Tucker he was engaged to defend the accused.

On July 9th Mr. Hester was in court defending the charge of contempt until time for lunch. After lunch he went over the evidence in this case with Mr. Jester and obtained the benefit of his preparation for trial. Late that afternoon he made some attempt to see James Tucker, but was told that he "would not be down" until next morning.

On the morning of July 10th, an hour and a quarter before the trial, Mr. Hester had a conference with Albert Tucker and some of his witnesses. As soon as the case was called he made the motion to postpone trial until a later day in the term, on the ground that he had not had sufficient time to prepare the case and...