Uzzle v. Commonwealth

• Decision Date: 23 January 1908
• Citation: 107 Va. 919,60 S.E. 52
• Parties: UZZLE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

60 S.E. 52

107 Va. 919

UZZLE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 23, 1908.

1. Criminal Law—Venue—Change of Venue — Application — Conclusiveness of Facts Alleged—Failure to Deny or Permit Proof.

Where one applying for a change of venue asks to prove the facts alleged, and the prosecution offers to produce evidence to sustain its denial of only one matter set up in the application, and neither party is permitted to introduce any evidence, the other allegations of fact made in the application must be considered as true on such application.

[Ed. Note.—For cases in point, see Cent. Dig vol. 14, Criminal Law, § 253.]

2. Same—Statutory Provisions—Conditions Precedent to Right.

Under Code 1887, § 4036, as amended by the act approved March 15, 1904 (Laws 1904, p. 307, c. 190 [Code 1904, p. 2126]), providing that the venue for the trial of a criminal case may be changed on motion for good cause, an application based on the ground that such prejudice and excitement existed against the accused as to endanger the fairness and impartiality of a trial conducted in the county need not be preceded by a motion to summon jurors from beyond the county, though, where an application for change is based merely on the ground of difficulty in obtaining jurors free from exception, it must be preceded by an application to summon jurors beyond the county.

3. Same—Good Cause—Local Prejudice.

Where the white people of a county are so greatly aroused against an accused, a colored man, and the relations between the races are such that it became necessary for the Governor to order the military to the place to preserve the public peace and accused was taken by a detail of soldiers to another city to await trial, and the judge of the court where accused was to be tried ordered that a posse comitatus proceed with the sheriff to bring him for trial, and the posse was still retained to protect him at the time of the application for a change, there was a good cause within the meaning of Code 1887, § 4036 [Code 1904, p. 2126], as amended, and a change should be granted.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 243.]

Appeal from Circuit Court, Accomac County.

James D. Uzzle was convicted of malicious shooting with intent to kill, and appeals. Reversed and remanded, with directions to change the venue.

Thos. H. Willcox and J. L. Jeffries, for appellant.

The Attorney General, for the Commonwealth.

BUCHANAN, J. When the accused, who was indicted for malicious shooting with in tent to kill, was brought into court, he filed his petition for a change of venue. The bill of exceptions taken to the rulings of the court upon his petition is as follows:

"Be it remembered that, when this case was called for trial, the accused, by counsel, filed a petition praying for a change of venue, and stated that be desired to prove the facts stated therein.

"Whereupon, the attorney for the commonwealth stated to the court that the military referred to in said petition were not called, or asked for, by any of the authorities of the town of Onancock, or the county of Accomac, and offered to introduce evidence in support of said statement.

"Whereupon, the accused amended his said petition so as to make the same allege, in addition to the facts already stated therein, the fact that the Governor bad personally visited the scene of the trouble in Onancock, and, after conference with the officers and officials of the county of Accomac, and town of Onancock, deemed it necessary to send the said troops to the said county, and offered to introduce evidence in support of the same.

"The said petition as amended, together with the order of the court referred to therein, is in the words and figures following, to wit:

" 'Virginia: In the Circuit Court of Accomac County.

" 'Commonwealth of Virginia v. James D. Uzzle.

'"To the Honorable John W. G. Blackstone, Judge of said Court:

" 'Tour petitioner, James D. Uzzle, of the county of Accomac in the state of Virginia, respectfully represents unto your Honor as follows:

" '(1) That on the 10th day of August, 1907, a riot occurred in the town of Onancock in said county of Accomac, Va., in which the storehouse and building of Samuel L. Burton and the printing office of your petitioner were burned by persons because of this excitement against your petitioner, who is a colored man, and who was believed by certain white citizens to be guilty of the offense with which he has been even indicted, and because of their indignation against the colored people of the community at that time and during which riot one John Topping was shot.

" '(2) That your petitioner, seeing and knowing that his life was in danger and that it was necessary to leave the town of Onancock prior to the burning of said buildings, did leave said town and was compelled to remain in hiding for several days in order to protect himself from violence, if not from death, such was the public indignation which had been aroused against your petitioner and others of his race at that time.

" '(3) That on the next day the Governor of this state, at the request of the authorities of Accomac county and the town of Onancock, or deeming such course necessary aftermaking a personal visit to the county, seeing the conditions existing, ordered the military to Onancock to preserve public peace and to prevent the recurrence of further rioting, and to protect the property and lives of the citizens of the town of Onancock, including particularly the life of your petitioner.

" '(4) That, notwithstanding the presence of the military at Onancock, your petitioner was compelled to remain in hiding for several days longer to protect himself from the feeling which had been aroused against him. Finding by inquiry, however, that it was prudent for him to return, he did return and surrendered himself to the officers of the state of Virginia for protection, and was brought by a detail of soldiers to the city of Norfolk, Va., where he was placed in custody of the sergeant of the city of Norfolk and has been kept since then, with the consent of the authorities of Accomac county and by direction of the Governor of the state of Virginia.

" '(5) Your petitioner has been informed that it has been deemed necessary by the authorities of the county of Accomac since said riot to keep a portion of the military forces of the state of Virginia at Onancock up to and including the 1st day of September, 1907, for the purpose of preserving public peace and order, so great is the feeling and indignation of the citizens of Onancock towards your petitioner and other persons of his race at Onancock.

" '(6) Your petitioner further alleges that so great is the public indignation and feeling in the county of Accomac against him that the judge of this honorable court has deemed it necessary to protect your petitioner from violence to cause the sheriff of Accomac county to summon and carry with him to the city of Norfolk an armed posse of 20 citizens from the county of Accomac to protect your petitioner and others from violence of the citizens of said county of Accomac, and he was on September 5, 1907, brought back from the city of Norfolk, Va., to the said county of Accomac by said armed body of citizens, and was by them placed in the Jail of said county, and there guarded in the said jail all night, and he was on the 6th day of September, 1907, brought into your honor's court closely guarded by said posse of armed citizens in order to afford him the protection to which he is entitled by law, and he is now being guarded by said posse. Reference is here made to said order and the same is asked to be read as a part of this petition, the same having been entered September 2, 1907. Your petitioner further states that though the military were withdrawn from the county on Sunday, September 1, 1907, as aforesaid, and the said order of the court was entered the next day, directing the posse comitatus to be summoned, and the said posse has been substituted for said militia, yet the Governor of Virginia has deemed it necessary to send the Adjutant General of Virginia to this county on September 2d to observe and be in touch with the situation here, and the said Adjutant General is here in court at this time to be in readiness to recall military forces promptly should the emergency require it.

" '(7) That under the facts above stated, and which are facts, your petitioner alleges that it will be impossible for him to have a fair and impartial trial, as he is in law entitled to receive.

" '(8) Your petitioner further alleges that under section 4036 of the Code of Virginia, as amended by an act approved March 5, 1904, he is entitled as a matter of right to have the venue changed in this trial, because of the fact that the mayor of the town of Onancock and the sheriff of the county of Accomac have called on the Governor of this state for military force to protect your petitioner from violence, and that, even though the military has been removed from the county of Accomac, the judge of this court has deemed it necessary to call a posse of armed men to aid the sheriff in removing your petitioner in safety to the county of Accomac and protect him while being tried, thus substituting one for the other.

" '(9) Your petitioner further states that up to this time he has been so confined in jail, and the public feeling is so great against him that he has been unable to procure affidavits in support of this petition, and prays that this may be taken and treated as his affidavit in support of the same.

" 'Your petitioner therefore prays that your honor will order the venue of this cause to be...