Wood v. Commonwealth

• Decision Date: 18 November 1926
• Citation: 135 S.E. 895
• Parties: WOOD v. COMMONWEALTH.
• Court: Virginia Supreme Court

135 S.E. 895

WOOD

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 18, 1926.

Error to Circuit Court, Albemarle County.

John Wood was convicted of an attempt to rape and he brings error. Affirmed

Curry & Carter, of Staunton, for plaintiff in error.

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

WEST, J. A jury in the circuit court of Albemarle county convicted John Wood, the plaintiff in error, of an attempt to rape Katharine T. Rose and fixed his punishment at death. This is a writ of error to the judgment of the court sentencing him to be electrocuted.

Miss Katharine T. Rose and Miss Payne attended the summer school at the University of Virginia in 1925. On Saturday night, September 5, 1925, they occupied twin beds in a room on the first floor, House D, Dawson's Row, in the University of Virginia grounds. On account of the heat, the windows in their room were left open. About 2 o'clock a. m. they were awakened by two colored men who had entered the room and grabbed them, pulled them out of bed down on the floor, choked and fought them, in an effort to rape them. When the ladies began to scream, they threatened to cut their throats. When Miss Rose had succeeded in getting on her feet, the man who was fighting Miss Payne said to the man who was struggling with Miss Rose, "Look out, John, she is going to jump out of the window."

Miss Smith, who occupied another room in the same building, heard their screams, came and knocked on the door, and the men were frightened and made their escape through the window. They left a gray cap, a pocket knife, a hat, and a package of cigarettes in the room. The day before the offense was committed the accused wore a gray cap, and after his arrest he admitted that the cap found in the room was his cap.

The accused voluntarily told a fellow prisoner, William Smith, while in jail, that he and another colored man, George Payne, entered the room through the window, and that he took hold of one of the women and George Payne the other; that after the women began to scream and holler he ran and left his cap in the room; that on the next day George Payne offered him $20 not to tell what he had done, because he had left his knife in the room.

The first assignment of error is to the action of the court in rejecting the pleas and overruling the motions of the accused relating to the jurisdiction of the circuit court of Albemarle county to try the case.

There was no error in the action of the court in overruling these motions and rejecting these pleas.

In 1916, in a proceeding instituted in the circuit court of Albemarle county for the pur-pose of extending the corporate limits of the city of Charlottesville, the city limits were extended to the property of the University of Virginia. Instead of following the boundary line of the university property, the order of the court provides that the corporate line of the city shall pass across the university property, but further provides that no part of the university property shall be included within the corporate limits of the city and become a part thereof. The court's order on this point is contained in section 11 of the decree of annexation, which reads as follows:

"Eleven: It is further ordered, on motion of the Rector and Visitors of the University of Virginia, the City of Charlottesville assenting thereto, that the grounds, walks, driveways, and all the lands belonging to said body, politic or corporate, the corporate name of which is: 'The Rector and Visitors of the University of Virginia, ' although embraced within the lines of this annexation, shall nevertheless be deemed to be excluded therefrom and shall be, remain and continue in all respects and for all purposes a part of the county of Albemarle, as fully as if the same were not included within the limits of this annexation."

The Virginia Code, § 5890, provides as follows:

"No circuit court shall have any original or appellate jurisdiction in criminal cases arising within the territorial limits of any city wherein there is established by law a corporation or hustings court."

Charlottesville has a corporation court.

The accused contends that House "D, " Dawson's Row, is within the corporate limits of the city, as fixed by the extension order and by the last amended charter of the city (Acts 1922, p. 166), and that the circuit court of Albemarle county is deprived by section 5890, supra, of all criminal jurisdiction in cases arising within said limits.

The extension order and section 5890, when properly construed, do not sanction this contention. The order says the property of the University of Virginia is excluded from the lines of annexation, which is equivalent to saying that the "territorial limits" of the city extends to the existing boundary line of the university property and no further, thus leaving all of the university grounds outside of the city limits. Under section 5890, supra, no property which is not made a part of the city can be said to be "within the territorial limits" of any city.

It follows that the circuit court of Albemarle county has not been deprived by section 5890, supra, of its jurisdiction in criminal cases arising on the university grounds.

The charter of the city of Charlottesville was amended by the Legislature of 1920 and 1922. Acts 1920, p. 285; Acts 1922, p. 166. It is conceded that in these legislative amendments the boundaries of the city are given as in the court order of 1916, except that no part of the University of Virginia property is excluded therefrom.

The accused contends that, by virtue of these amendments, House D, Dawson's Row, is within the corporate limits of the city of Charlottesville, and that the corporation court of the city of Charlottesville has exclusive jurisdiction of the instant case.

The Constitution of Virginia, § 126, requires the General Assembly to provide by general law for the extension and contraction of city and town limits, and declares that no special act shall be valid. The Legislature has complied with this mandate of the Constitution. Chapter 120, Code of Virginia.

In 1914, the Legislature amended the 1908 charter of the town of Narrows (Acts 1914, c. 327), so as to add additional territory and new inhabitants. The act of 1914 was attacked on the ground that it violated section 126 of the Constitution. This court, in Town of Narrows v. Giles County, 128 Va. 572, 105 S. E. 82, held that:

So much of "section 1 as embraces the new territory and the new inhabitants thereof is plainly in violation of section 126 of the Constitution, and therefore null and void."

The second and third assignments of error relate to the action of the court in overruling the accused's motion for a change of venue and for a jury from another county.

The accused, to sustain each of these motions, relies on the fact that the judge of the court entered an order on September 9, 1925, removing the prisoner to Henrico county jail, reciting that the sheriff of the county had reasonable grounds to believe that an attempt would be made by certain persons to take John Wood from the custody of the sheriff, "with intent to take the life of or to do bodily injury to the said Wood, " and that the jail of said county was not in a condition sufficiently safe properly to protect the prisoner.

This order stated the sheriff's views as of September 9, 1925, and the trial was not held until the following November. The right of a prisoner to have a change of venue or a jury from another county depends upon the conditions existing at the time of...