Wansley v. Com., 5770

• Decision Date: 11 September 1964
• Docket Number: No. 5770,5770
• Court: Virginia Supreme Court
• Parties: THOMAS CARLTON WANSLEY v. COMMONWEALTH OF VIRGINIA. Record

Page 870

137 S.E.2d 870

205 Va. 419

THOMAS CARLTON WANSLEY v. COMMONWEALTH OF VIRGINIA.

Record No. 5770.

Supreme Court of Appeals of Virginia

September 11, 1964.

William M. Kunstler and L. W. Holt (Arthur Kinoy, on brief), for the plaintiff in error.

W. P. Bagwell, Jr., Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: WHITTLE

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

(In considering this case see Wansley v. Commonwealth -- Record No. 5769, this day decided)&gt Thomas Carlton Wansley, a negro youth age 17, was tried as an adult in the corporation court of the city of Lynchburg on February 7, 1963, under two indictments charging him with robbery and rape of one Annie Carter, a mature white woman. Wansley entered pleas of not guilty to both indictments and by agreement the cases were tried together. Upon the jury's verdict finding the accused guilty of rape and fixing his punishment at death, final judgment was entered on February 7, 1963. Final judgment was also entered on the jury's verdict finding him guilty of robbery and fixing his punishment at twenty years in the penitentiary. A writ of error and supersedeas were granted to review both judgments.

The accused being 17 years of age at the time of the alleged crimes, the Juvenile and Domestic Relations Court of the city of Lynchburg ordered an investigation to be made upon a petition charging the rape of Annie Carter pursuant to provisions of §§ 16.1-164 and 16.1-176 of the Code of Virginia 1950, as amended. See Tilton v. Commonwealth, 196 Va. 774, 85 S.E.2d 368. Pursuant to this order, probation officer Strong interviewed the accused on December 10, 1962 and filed a comprehensive written report recommending that the accused be tried as an adult.

At the preliminary hearing on December 13, 1962, the juvenile court adjudged that Wansley could not be adequately controlled as a juvenile, ordered that he be tried as an adult, and certified the case to the corporation court to await action of the grand jury.

Reuben Lawson, a Roanoke attorney, was selected by Wansley and his mother to represent him. Lawson represented the accused at the preliminary hearing and at subsequent proceedings, including the trial in the corporation court on February 7, 1963, under the indictments charging the rape and robbery of Annie Carter.

There was no appeal from the judgment of the juvenile court and the indictments for rape and robbery were subsequently returned by the grand jury. On December 18, 1962 the judge of the corporation court appointed Dr. John G. Novak, a psychiatrist, to examine the accused for the purpose of determining whether his mental condition was such that he should be committed to a mental institution for observation. Dr. Novak's report indicated that, in his opinion, the accused was capable of standing trial.

On January 7, 1963 the accused, together with his counsel, appeared before the court and in response to request of counsel for the accused, the cases were set for trial on February 7, 1963.

Counsel for the accused had been unable to secure the services of a court reporter and on February 5, 1963 a motion for a continuance was made in order to enable counsel to secure such services. This motion was overruled. Again on February 7, 1963, the day of trial, counsel filed a written motion seeking a continuance for the same reason, which, over the objection and exception of counsel, was overruled.

The cases proceeded to trial and the accused was found guilty of rape, his punishment being fixed at death, and judgment was entered on this verdict. He was likewise found guilty of robbery and his punishment fixed at twenty years in the penitentiary, upon which verdict judgment was also entered.

On February 28, 1963 attorney Lawson filed a motion for a new trial on the ground of after-discovered evidence. This motion was based upon a medical examination made by Dr. Gardner, which examination indicated the accused was suffering from mental disorders. This motion was overruled. Whereupon, trial counsel Lawson filed notice of appeal and 10 assignments of error on February 28, 1963. Attorney Lawson died suddenly on March 23, 1963.

On April 6, 1963 an additional assignment of error was filed by L. Holt, an attorney who had been employed to replace Lawson and on April 8, 1963, 33 assignments of error were filed on behalf of the accused by his then attorney, Holt. On April 6, 1963 motion was made for a new trial by reason of death of trial counsel. This brought under consideration defendant's motion for a continuance in order to obtain a court reporter. The motion for a new trial was overruled in a written opinion handed down by the trial judge on May 2, 1963, which opinion held said motion had been filed more than 21 days after the final judgment of February 7, 1963, violative of the rules of court.

While there were 10 assignments of error filed on February 28, 1963 by trial attorney Lawson, we deem it necessary to consider but the one assignment, which we hold calls for a reversal and new trial. This assignment reads that: 'The court erred in refusing to grant the continuance to enable defendant to obtain a court reporter'.

The motion for a continuance is, of course, addressed to the sound discretion of the trial court and whether judicial discretion has been properly exercised depends upon the factual situation existing, the burden being upon the complaining party, the accused in this instance, to point out the facts and to lay the finger upon the error.

We are here confronted with the case in which an ignorant 17-year-old negro boy has been...