Watkins v. Commonwealth, Record No. 2227.

• Citation: 174 Va. 518
• Decision Date: 08 January 1940
• Docket Number: Record No. 2227.
• Court: Supreme Court of Virginia
• Parties: G. LEWIS WATKINS v. COMMONWEALTH OF VIRGINIA.

Page 518

174 Va. 518

G. LEWIS WATKINS v. COMMONWEALTH OF VIRGINIA.

Record No. 2227.

Supreme Court of Virginia, Richmond.

January 8, 1940.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. CRIMINAL LAW — Right to Benefit of Counsel — Failure to Give Opportunity to Secure Counsel Denial of Due Process. — The right to a hearing, as a basic element of due process, includes the right to the aid of counsel, and failure to give the accused a reasonable time and opportunity to secure counsel prior to trial constitutes a denial of due process. The right includes a fair opportunity to secure counsel of one's own choice.

2. CRIMINAL LAW — Right to Benefit of Counsel — Federal Constitutional Provision Applies Only in Federal Courts. — The sixth amendment to the Constitution of the United States guarantees to the accused the right "to have the assistance of counsel for his defense," but this amendment applies only to criminal prosecutions in the federal courts and not to those in state courts.

3. CRIMINAL LAW — Right to Benefit of Counsel — Right Guaranteed under Bill of Rights. — The right of a person accused of crime to the assistance of counsel is one of the rights guaranteed to an accused by the Bill of Rights, section 8 of the Constitution of 1902.

4. CRIMINAL LAW — Right to Benefit of Counsel — Courts' Inherent Right to Appoint Counsel to Defend Paupers. — Courts of record having criminal jurisdiction possess the inherent authority, independent of statute, to appoint counsel to defend paupers and other indigent persons charged with crime.

5. CRIMINAL LAW — Right to Benefit of Counsel — Right Is Permissive. — No one is compelled to have counsel if he does not so choose. The right is permissive and conditional upon the pleasure of the accused; preferring the protection of the court, or choosing to rely upon his own skill and ability, he may not desire the assistance of counsel.

6. CRIMINAL LAW — Right to Benefit of Counsel — Where One Able to Employ Counsel Declines to Do So. — If a person accused of crime is able to employ counsel, but declines to do so, and goes to trial without counsel, and is convicted, that is no ground for reversing the judgment.

7. CRIMINAL LAW — Right to Benefit of Counsel — Ability to Employ Counsel Is Question of Fact. — Whether an accused is able to employ counsel and refuses to do so is a question of fact for the trial court.

8. COSTS — Cost of Printing Record — Presumption of Payment by Accused. — Where the record does not show that an accused is proceeding in forma pauperis the presumption is that he has paid the cost of printing the record on appeal.

9. CRIMINAL LAW — Right to Benefit of Counsel — Failure to Appoint Counsel Where Accused Was Able to Employ Counsel — Case at Bar. — In the instant case, a prosecution for forgery, accused contended that in violation of his constitutional rights he was put on trial without the benefit of counsel. When the docket was called, a lawyer appeared and announced that he had been retained to represent accused. When the case was called, two other lawyers appeared and announced that they were ready for trial but requested a delay for a short while so that accused might make arrangements for the payment of their fee for representing him, and accused stated that if given a few minutes he could make the necessary arrangements, and for his accommodation the trial was deferred. The evidence showed that accused made no effort to arrange for the further employment of counsel but announced in open court that he was ready for trial. The trial court certified that accused had made no bona fide effort to employ counsel although he was able to do so.

Held: That the trial court correctly concluded that accused was able to employ his own counsel and, consequently, none of his constitutional rights were violated by the failure of the court to appoint counsel for him.

10. ACCOMPLICES AND ACCESSORIES — Witnesses — Conviction upon Uncorroborated Testimony of Accomplice. — The jury, as triers of the fact, may, if they are satisfied of the guilt of the accused, convict him upon the uncorroborated testimony of a single accomplice, though the evidence of an accomplice should be received and acted upon by a jury with great caution.

11. FORGERY AND COUNTERFEITING — Accomplices and Accessories — Conviction upon Uncorroborated Testimony of Accomplice — Case at Bar. — In the instant case, a prosecution for forgery, accused contended that the verdict was contrary to the law and evidence in that it was based on the uncorroborated testimony of an accomplice. The jury was particularly instructed that the prosecuting witness was an accomplice and that his testimony should be weighed by the jury with great care and caution and the trial court further warned the jury of the danger of convicting on the uncorroborated testimony of an accomplice.

Held: That there was no merit in the contention of accused, since the evidence, in the light of the instruction, was amply sufficient to support the verdict.

12. TRIALS — Separate Trials on Several Indictments — Waiver — Case at Bar. — In the instant case accused was charged with forging and uttering three checks and was tried by a single jury on three indictments at the same time. The trial court certified that after accused had stated that he was ready for trial, the court explained to him that there were three indictments pending against him and that he had the right to insist upon a separate trial in each case, but that accused announced in open court that it was agreeable to him to try all of the cases together. Accused contended on appeal that the judgments should be reversed because the trial court permitted the same jury to try accused on the three indictments together.

Held: That there was no merit in the contention. Having clearly waived in the court below his right to a separate trial on each indictment, accused was in no position to complain in the Supreme Court of Appeals, for the first time, that he was tried on the three charges together by the same jury.

Error to judgments of the Hustings Court of the city of Roanoke. Hon. James L. Almond, Jr., judge presiding.

The opinion states the case.

T. Warren Messick, for the plaintiff in error.

Abram P. Staples, Attorney-General, for the Commonwealth.

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

At the December term of the Hustings Court of the city of Roanoke three indictments were found against G. Lewis Watkins and Roy M. Smith, Jr., charging them with forging and uttering three checks. Watkins pleaded not guilty to the charges while Roy M. Smith, Jr., pleaded guilty and testified for the Commonwealth.

With his consent Watkins was tried by a single jury upon the three indictments at the same time. He did not then have the assistance of counsel. The jury found him guilty and fixed his punishment at six months in jail under each indictment. Before the end of the term at which the verdicts were rendered, the accused employed counsel who filed a motion to set aside each of the verdicts on the following grounds:

(1) That in violation of his constitutional rights the accused was put on trial without benefit of counsel; that although he was without means to employ counsel, yet the court failed to appoint counsel to defend him;

(2) That the verdicts were contrary to the law and the evidence in that they were based on the uncorroborated testimony of an accomplice.

The court overruled the motion of the accused to set aside the verdicts and entered judgment thereon in each of the cases. To review these judgments this writ of error has been granted.

The first assignment of error is that the accused was deprived of his constitutional rights by being put on trial without benefit of counsel.

Here the argument is that the accused was unable to employ his own counsel; that he is ignorant and uneducated and did not know that he had the right to have the court appoint counsel for him; that although he made no request for the appointment of counsel it was nevertheless the duty of the court to have made such appointment, and that its failure to do so was in violation of the rights guaranteed to him by the Constitution of the United States and the Constitution of Virginia.

In 14 American Jurisprudence, Criminal Law, section 167, pp. 882, 883, the author says:

"In varying language the Constitutions of many states guarantee to persons accused of crime the right to be heard and to have the assistance of counsel for their defense. In some jurisdictions the right is conferred in capital cases only, though generally it applies in all criminal cases including misdemeanors.

"It has been said that the accused has a common-law right to counsel, but it seems that in England the privilege of a full defense did not exist in trials for treason until after 1688, and in the trial of other felonies until 1836. In fact, the constitutional provisions were adopted for the purpose of abrogating the common-law practice under which persons accused of felony were denied such right.

"The right to a hearing, as a basic element of due process, includes the right to the aid of counsel, and failure to give the accused a reasonable time and opportunity to secure counsel prior to trial constitutes a denial of due process. The right includes a fair opportunity to secure counsel of one's own choice."

See also, Powell Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

2, 3 While there is no specific provision in the Constitution of Virginia guaranteeing to persons accused of crime the right to have the assistance of counsel,^* in Barnes Commonwealth, 92 Va. 794, 803, 23 S.E. 784, this court recognized the right to be a fundamental one. It is, we think, one of the rights guaranteed to an accused under our Bill of Rights. Virginia Constitution, section 8.

It is well settled that courts of record having criminal jurisdiction possess the inherent authority,...