delivered the opinion of the court.
The accused, a single man, was tried and convicted for seduction under promise of marriage.
It appears that the Honorable Beverley Berkeley, judge of the Law and Chancery Court of the city of Roanoke, was requested by the Honorable P. H. Dillard, judge of the Circuit Court of Franklin county, to try this case.
Pursuant to adjournment, on May 6th Judge Berkeley again appeared at the courthouse оf Franklin county and the case was tried. After the jury had rendered an adverse verdict, the accused, for the first time, raised an objection to Judge Berkeley sitting, and moved to set the verdict aside on the grounds that he was not the judge of the Circuit Court of Franklin county; that no formal order had been entered by the regular judge of said court dеsignating him to sit, nor had he been commissioned by the Governor for this purpose. The motion was overruled. This action constitutes the first assignment of error.
This contention in behalf of the accused renders it necessary to examine Code 1919, section 5898, as amended by laws 1928, chapter 236, which section covers every contingency which might рrevent a judge from holding his own court. They may be classified thus:
(1) If the regular judge is absent, unable to attend, or fails to hold a term of his court, or a part thereof, he is authorized to procure another judge to sit for him.
(2) In the event that he is so situated as to render it improper, in his opinion, for him to preside at a trial, then he shall enter thаt fact of record, in which event the clerk shall certify the statement of the judge to the Governor, who shall designate another, judge to preside.
(3) If the regular judge, by reason of sickness or other physical disability, is unable to hold his court, then the Governor shall be notified, either by the judge himself, his attending physician, the attorney for the Commonwealth, or the clerk of any such court, and the Governor shall then designate some other judge to hold court.
The history of this section clearly indicates that this is the correct cоnstruction to be placed on it. By section 3065 of the Code of 1887 the judges of the circuit courts were expressly permitted to exchange with each other their respective circuits for a period not longer than one year, but in this event it was necessary that a formal order setting forth such agreement be recorded. Without formal exchange, one circuit judge was permitted to hold court for another for either a full term or for a part thereof.
In Munford’s Code (1873), chapter 154, section 14, is found the following provision applicable to county judges:
“If any judge of a county court be unable or fail to attend a regular term of his court, or be prеvented from sitting during the whole term, or if, from death or other cause there be no judge of such county, any other county judge may hold said court, either for the whole term or any part thereof.
The constitutionality of this provision was upheld in the ease of Smith v. Commonwealth,
By an amendment found in the Acts of 1883-1884, chapter 566, page 748 (section 3049, Code of 1887), this provision was made to read as follows:
“If a judge of a * * * court be unable or fail to attend a regular term of his court, or be prevented from sitting during the whole term, or any part thereof, or if he
In the case at bar the accused relies upon the case of Gresham v. Ewell,
The General Assembly of 1902-03-04, Extra Session, amended this section several times, but by an act found on page 666 of the Acts of that session the legislature seems to have incorporated into the statute the minority view of Judge Lewis in the above case which is substantially section 5898 of the 1919 Code.
This section was discussed in the case of Smith v. White,
Judge Crump, sitting as the president of the spe'cial court in the case of Bukva v. Matthews,
The above сonstruction is in accord with the view long held by both the bench and the bar of this State. It is the practice in different parts of the State for a judge to procure another to preside for him without requesting the Governor to designate such judge, or entering any order therefor. The statute requires no order in any event. A mere statement оf fact is required to be entered when the resident judge is disqualified, and that fact certified to the Governor.
The reasons for the requirement of this, entry are two-fold: (1) To enable a judge who may have a personal interest in the outcome of the litigation to free himself from possible embarrassment by simply making a statement of record, and in so doing end his official connection with the matter.
(2) It removes all possible grounds of suspicion that the interested judge is using his office to obtain a judge to preside who might be biased in his favor. The reason for the requirement is, therefore, applicable only in the event that the resident judge is of opinion that he is disqualified to рreside.
The accused moved the court to set aside the verdict on the ground that there was no corroborative evidence of the promise of marriage. In disposing оf this assignment of error, we shall only refer to that part of the evidence deemed necessary to a clear understanding of the law applicable.
It appears from the evidence of the Commonwealth that the home of Mary Nicholson, the prosecutrix, was at Fer-rum, in Franklin county; that in 1927 she went to a business school in Rоanoke, and later was employed at a silk mill in that city. She claims to have become acquainted with the accused on January 12, 1929, and from that time until after the child was born, on August 19, 1929, the accused visited her regularly, as stated in his own language: “I won’t say every night, but most every night.” He visited her at her home at Ferrum and, after her condition becаme apparent, referred to her as his wife. On August 13th there appeared a newspaper announcement that the parties were married in Bristol on January 12, 1929. No denial of this statement was made by the accused until several weeks after the child was born. During the interval between this time and the date of the birth of the child the aсcused visited the prosecutrix in her father’s home and was received by him as a member of the family. It seems, however, that the prosecutrix and the accused mutually agreed so to act in order to deceive her father. The accused spent the night before the child was born at the home of the prosecutrix and next morning went for the doctor and the nurse to attend the birth of the child.
Judge Keith, in the Mills Case,
This case comes squarely within the rule laid down in the case of Riddleberger v. Commonwealth,
“To sustain such a conviction it is well settled that the corroborating evidence need not be direct but may be circumstantial, or partly direct and partly circumstantial evidence. Touching the promise of marriage, it is also well settled that the supporting evidence need be such only as the character of that matter admits of being furnished. As said in the case of Lasater v. State,
It is claimed by the accused that a letter from the prosecutrix to him, dated May 23, 1929, after her condition was known to both of them, conclusively shows that there was no promise of marriage. While the letter tends to support this contentiоn, it is not conclusive, and it was for the jury to consider it along with all the other evidence in the case and give it such weight as in their judgment seemed proper.
There is no error in the action of the court in overruling the motion for a new trial on this ground.
The third assignment of error is to the action of the court in overruling the motion for a new trial on the ground of after-discovered evidence.
A discussion of the principles of law applicable to this point is found in the following cases: St. John’s Exors. v.
The learned Attorney-General contends that the trial court was correct in overruling this motion, and bases his contention on two grounds: (1) That the new evidence is merely cumulative; (2) that he dоes not believe it would change the result.
We cannot agree with either of these contentions. Whether Mary Nicholson was a woman “of previous chaste character” is the question raised by the after-discovered evidence. In the trial, the accused introduced testimony showing numerous circumstances and acts from which the jury might readily have inferred that she was not a chaste woman, e. g., she and her female companions would allow men, strangers to them, to accost them on the streets and other public places in Roanoke, and go automobile riding with them at night; that they frequented such places referred to in the evidence as “nature’s own;” she allowed a young man to take her bloomers off while sitting at night in a parked car; and was frequently seen with men in private rooms at different hotels.
The only direct testimony showing want of previous chastity was that given by one of Mary Nicholson’s female companions, who said that before the accused became acquаinted with the prosecutrix she saw her in a private room at a certain hotel undress and have intercourse with a man in the same bed on which the witness was lying. This latter testimony was so unusual and so nauseating that the jury might well have taken the view that they did and disregarded the whole of it. Except for this unusual incident, the accused relied solely on infеrences to prove want of chastity.
“That during the early part of November, 1928 (as affiant verily believes, but which date can be definitely fixed by him later when he has access to certain papers which he owns) the said affiant was in the filling station of Jеss Ingram, at Ferrum, Franklin county, and there in the back room of said filling station became acquainted with a girl whom he later learned was Mary Nicholson. That at the time she was in company with several others,, and although drinking was perfectly sober and normal. That affiant proposed to the said Mary Nicholson that they take an automobile ride, to which she agreed. That at this time he had not been introduced to her and did not know her name. That this occurred after dark and they went for a ride in the direction of Rocky Mount. That on the road, while riding along, affiant asked said Mary Nicholson 'how it would be for them to have a little party,’ to which she agreed and he told her he wаs a stranger to that road and asked ■ if she knew where a suitable place could be found. That in pursuance to this request she directed him to a private, narrow cross road, to which he drove and then and there had sexual intercourse with her. That she further told him that she had been at this same place and had had sexual intercourse with J. 0. Shively in this private cross road. * * *
“That this statement is made without any reward or hope of reward being paid to said affiant, but purely as a
The new evidence is positive and definite as to time, place and the circumstаnces under which each of the affiants had intercourse with the prosecutrix prior to the time that she met the accused. They go further and show that Mary Nicholson made no effort to conceal the fact, if it be a fact, that she was a lewd woman.
The record shows that the accused had produced evidence discovered since the trial, and that he used due diligence to ascertain the same before trial. The new evidence, if believed by the jury, would change the result, whether or not it is merely cumulative is a secondary consideration.
From the cases cited above, it will be seen that this court has long recognized this principle, but has аpplied it with caution and only to prevent a miscarriage of justice. The real object to be attained in granting a new trial is to prevent an erroneous judgment from becoming final. See Spencer v. State,
We do .not undertake to say that the new evidence is true or what weight a jury should, or would, give to it. In our opinion, it ought to change the result if it is worthy of belief, but whether it is worthy of belief is a question which should be determined by a jury and not by the court.
In the discussion of the evidence, old and new, there has been no intention of expressing an opinion as to the actual guilt or innocence of the accused, or as to the weight or credibility of the testimony, and nothing said herein must
There are other assignments of error dealing with the admission and rejection of evidence, but as these questions are not likely to arise on a new trial it is deemed useless to prolong this opinion by discussing them.
The judgment will be reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had not in conflict with the views herein expressed.
Reversed.