Wallen v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: WEST
• Citation: Wallen v. Commonwealth, 114 S.E. 786 (1922)
• Decision Date: 16 November 1922
• Parties: WALLEN. v. COMMONWEALTH.

114 S.E. 786

WALLEN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Malice.]

Error to Circuit Court, Wise County.

D. G. Wallen was convicted of murder in the first degree, and he brings error. Affirmed.

Morton & Parker, of Appalachia, and W. S. Cox, of Gate City, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

WEST, J. D. G. Wallen, who was jointly indicted with Lina Fields for the murder of D. W. Littrell, was convicted of murder in the first degree, and sentenced to the penitentiary for 20 years. To that judgment this writ of error was awarded.

The accused assigns as error the action of the trial court:

(1) In refusing to grant a continuance on account of the absence of material witnesses.

(2) In refusing to quash the list and venire facias as made up.

(3) In refusing to discharge the jury as finally impaneled.

(4) In placing the accused on trial without any severance or election.

(5) In admitting certain evidence over the objection of the accused.

(6) In giving certain instructions on behalf of the Commonwealth.

(7) In refusing to set aside the verdict of the jury because contrary to the law and the evidence.First Assignment.

When the case was called for trial, the

accused moved for a continuance on account of the absence of John Snodgrass and Henry Snodgrass, eyewitnesses to the shooting, his counsel stating that they were material witnesses.

John Snodgrass bad testified at a former trial of the case, and was under a recognizance to be present. Upon inquiry by the court as to his information of the whereabouts of these witnesses, counsel for accused stated that both lived in this state; that he was informed that Henry Snodgrass was temporarily in Ohio; and that John Snodgras was at or near St. Charles, in Lee county, Va., whereupon the judge announced that he would endeavor to secure the attendance of John Snodgrass, but that the trial would proceed. An attachment was issued for John Snodgrass, directed to W. Y. Tucker, an officer of Wise county, who was directed to proceed immediately to Lee county and endeavor to locate John Snodgrass. Tucker returned the next day and reported to the court that be went to St. Charles and made a thorough investigation; that he was told that Snodgrass had not been there for a considerable time, and no one knew of his whereabouts. The accused, by counsel, thereupon requested permission to read to the jury a stenographic report of John Snodgrass' former evidence. The attorney for the commonwealth interposing no objection, the court granted the prisoner's request, and the evidence was read.

It is well settled, by reason and authority, that the question of continuances rests in the sound discretion of the trial court, and this court will not reverse its judgment unless the ruling of the court was plainly erroneous. Counsel for the accused gave no assurance that the witnesses could be produced if the motion for a continuance were granted. There were several other eyewitnesses to the shooting who testified at the trial, and the testimony of the Snodgrass witnesses would have been largely cumulative and unlikely to have affected the result.

The absence of a witness who has not been summoned, where there is no assurance that his testimony could be had at another trial, if the case were continued, is not ground for a continuance. Likewise the refusal to grant a continuance will not be considered an abuse of discretion where a witness is beyond the jurisdiction or compulsory process of the court, and there is no reasonable certainty of the party being able to produce such witness at the next term. Hurd v. Com., 5 Leigh (32 Va.) 715; C. & O. Ry. Co. v. Newton, 117 Va. 260, 85 S. E. 461; Matoaka Coal Corp. v. Clinch Valley Min. Corp., 121 Va. 522, 93 S. E. 799; Town of Farmville v. Wells, 127 Va. 528, 103 S. E. 596. There is no error in this assignment.

Second Assignment.

While the court was selecting and impaneling the jury, but before the jury was sworn, the accused moved to quash the second venire facias, because the court verbally directed the sheriff to go to the town of Coeburn, in Wise county, and summon 12 persons, without any list. On this point the facts appear from the record to be as follows: A sufficient number of jurors to constitute a panel free from exception had not been obtained from those summoned and in attendance, and the court ordered another venire facias to be issued to complete the panel, directing the sheriff to summon 25 jurors from the bystanders. The venire facias was issued, and the sheriff had partly executed the same, when the court verbally directed that he go to the town of Coeburn and summon 12 persons, which was done. A list of the names of the persons so summoned was returned to the court, and the clerk was directed to call said persons to the jury box. As they responded, the clerk wrote their names in their places on the venire facias for the sheriff to make his return, and when said names had been so written the sheriff signed his return.

Being unable to secure from those summoned and in attendance a sufficient number of jurors to constitute a panel of 20 free from exception, the court was fully authorized by section 4896 of the Code 1919, to direct another venire facias, and cause to be summoned from the bystanders, or from a list to be furnished by the court, so many persons as were deemed necessary to complete the panel. It is apparent that the sheriff was unable to find 25 persons among the bystanders in the courtroom, who could probably qualify as jurors, and that the trial judge, for good and sufficient reasons, thought it improbable that they could be secured among the citizens of the town of Wise, and therefore directed the sheriff to go to the town of Coeburn and secure 12 persons to complete the list and the panel.

It will be observed that section 4896 of the Code, supra, authorized the court to cause to be summoned "from a list to be furnished by the court, " so many persons as were deemed necessary to complete the panel. The position of the commonwealth is that this was ample authority for the judge to direct the sheriff to summon the 12 citizens of Coeburn, whose names, upon their appearance in court, were furnished to the clerk by the court, as the list of the court, with directions to call them into the jury box. While the proceeding may have been somewhat irregular, yet it is provided by section 4895, Code 1919, not only that the objection to any irregularity in the summoning, returning, or impaneling of jurors shall be made before the jury is sworn, but that it shall not be a cause for setting aside the verdict, unless it also appears that such ir-regularity was intentional or such as would probably cause injustice to the commonwealth, or to the accused. In the instant case, there being no evidence to the contrary, the presumption is that the trial judge did what in his opinion he bad a right to do, under the statute, and it cannot be said that the alleged irregularity was intentional, or such as probably resulted in any injustice to the accused. This assignment is therefore without merit.

Third Assignment.

We find in the record nothing to show that any exception was taken to the refusal of the court to discharge the jury as finally impaneled. If such motion were made and overruled, for the reasons stated in discussing the second assignment, there is no error in this assignment.

Fourth Assignment.

This was the second trial of the case. The record shows that, after the commonwealth had closed its evidence in chief, counsel for the accused stated he had noticed on the day before, when the trial began, that Lina Fields was jointly indicted with the accused, and had just learned that the record did not show a severance or election by either party, and that he desired to know of the prosecution what proceeding would be taken with reference to the other defendant. The attorney for the commonwealth replied that at the former trial the other defendant had not been arrested and was not present, and that the defendant went to trial without objecting, which was of itself a severance. The court ordered the trial to proceed, to which ruling the accused excepted.

Section 4895, Code of 1919, as amended by Acts of 1920, p. 24 (same as section 4029, Code of 1887), provides as follows:

"If a person, indicted jointly with others for a felony, elect to be tried separately, the venire summoned for their trial may be used for him who is first tried, and the court shall award a venire facias for the trial of the others, jointly or separately, as they may elect."

In the case of Barnes v. Commonwealth, 92 Va. 794 at page 802, 23 S. E. 784 at page 786, Judge Buchanan, speaking for the court, said:

"The accused was indicted jointly with two other persons, but tried separately. The record does not show upon whose motion she was tried, and this is assigned as error. Each and every person indicted jointly for a felony may elect, as a matter of right, to be tried separately, under section 4029 of the Code, and the attorney for the commonwealth has the right to try them separately, subject to the" control of the court; but persons jointly indicted cannot be tried jointly without the concurrent election of themselves, on the one hand, and the attorney for the commonwealth or the court, on the other. But if it were true that the accused had the right to be tried separately or jointly at her election, there is nothing in the record to show that she made her election to be...