Wilson v. Commonwealth

• Decision Date: 14 January 1932
• Citation: 162 S.E. 15
• Court: Virginia Supreme Court
• Parties: WILSON. v. COMMONWEALTH.

162 S.E. 15

WILSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

Error to Corporation Court of Norfolk.

Charlie Wilson was convicted of maliciously wounding another, and he brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, and BROWNING, JJ.

Q. C. Davis, Jr., and Jas. G. Martin, both of Norfolk, for plaintiff in error.

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

CAMPBELL, C. J.

The accused, Charlie Wilson, was indicted for the malicious wounding of C. E. Keeter. The first bill of exceptions sets forth the result of the trial as follows:

"And having heard the foregoing evidence and the instructions of the court, and argument of counsel, the jury returned the verdict of guilty against the defendant, and fixed the punishment at 5 years in the penitentiary with a recommendation that three and one-half years thereof be suspended."

Treating, no doubt, as surplusage the recommendation for a three and one-half years' suspension of the punishment, the trial court sentenced the accused to the penitentiary for the period of five years. The record fails to show any discussion of the form of the verdict as indicated by the bill of exception. The order, however, does show that the verdict was in proper form, but there is no indication that the jury would have imposed a punishment of five years in the penitentiary had they been advised that the court was without warrant of law to suspend a part of the sentence.

The facts are that Wilson, the husband of Mrs. Bessie Wilson and stepfather of Virginia Whitcombe, a girl of sixteen years of age, was an employee of the Norfolk Southern Railway Company in the city of Norfolk. Keeter, a married man and the father of two children, was paying marked attention to the daughter, without having informed her of his marital state. When Wilson ascertained that Keeter was married, he forbade his visiting in the home. On Thanksgiving, 1929, an altercation arose between Wilson and Keeter, a knife was drawn by Wilson, but there was no actual combat. Following this episode, Mrs. Wilson and the daughter left the home of Wilson, for the alleged reason that Wilson had committed an assault and battery upon the wife. Immediately thereafter Keeter became a boarder in the then home of Mrs. Wilson. The record shows that the domestic relations of the Wilsons were far from happy, and during the period of separation Mrs. Wilson instituted a suit for divorce, which was pending at the date of the trial.

On the 25th day of April, 1930, the day of the wounding, Keeter, Mrs. Wilson, and the daughter were driving in an automobile along the streets of Norfolk, on their way to visit the mother of Mrs. Wilson. As divulged by the testimony of Keeter and Miss Whitcombe, they passed Wilson who was driving a Ford car, and immediately, without warning, he fired three or four pistol shots at them, one of the shots taking effect in Keefer's left arm. Wilson claims that as Keeter drove past him he (Keeter) pointed a pistol at him and that he (Wilson) shot in reasonable apprehension of bodily harm, and thus in self-defense. Keeter, Miss Whitcombe, and Wilson were the only witnesses who testified in regard to the main transaction.

Under the well-recognized rule prevailing in this state, that it is the peculiar province of a jury to pass upon the conflict of evidence, it is conceded by counsel for the accused that the evidence adduced by the com-monwealth supports the verdict, and no error is assigned for the refusal of the court to set aside the verdict on the ground that it is contrary to the evidence.

The errors assigned are:

"1--The Court erred in not setting aside the verdict because the Commonwealth's Attorney illegally called the defendant's wife as a witness for the Commonwealth.

"2--The Court erred in not setting aside the verdict because the Commonwealth's Attorney in his closing argument to the jury, illegally commented on the failure of the wife to testify.

"3--The Court erred in not setting aside the verdict and discharging defendant because the defendant did not have a speedy trial, as required by the Constitution, and more than four terms of court passed before his sentence."

The first two assignments of error involve a construction of section 6211 of the Code. In the inception of the trial, while Keeter was testifying as a witness, he made the statement: "Mrs. Wilson says to me, 'He is going to shoot at you.' " Counsel for the accused moved the court to strike out the statement on the ground that it was in violation of the statute, which motion the court sustained. Upon the conclusion of the testimony of Keeter and Miss Whitcombe, the attorney for the commonwealth called as a witness for the prosecution Mrs. Wilson, the wife of the accused, who apparently stood ready to testify. On motion of counsel, the court ruled that she was an incompetent witness. In the face of the ruling of the court that the statement of Mrs. Wilson, as quoted by Keeter, was not admissible, that she would not be permitted to testify as a commonwealth's witness against her husband, the attorney for the commonwealth, in his closing argument, made this statement:

"There were three persons, including the man who was shot, in the automobile with him, and that two of those persons had testified for the prosecution, but that the third person in the automobile was prevented from testifying by a legal technicality."

What then transpired is shown by bill of exceptions No. 2:

"Immediately upon the retirement of the jury, counsel for the defendant objected and excepted to) said statement of the Commonwealth's Attorney on the ground that it was improper and contrary to the express provision of the Virginia statute, which provided that the failure of a wife to testify should not be commented upon by the prosecuting attorney.

"The Court said, 'Do you want to make a motion for a mistrial?' Counsel for the defendant said, 'We do not have to make a motion for mistrial under the Eley Case.'

"After staying out for some time the jury came back into Court to ask the Court a question, and after answering the question, the Court stated to the jury that the jury should disregard the statement made by the Commonwealth's Attorney to the effect that the reference to testimony of third person which...