179 Va. 303 | Va. | 1942
delivered the opinion of the court.
About dark on Sunday, September 24, 1939, an automobile driven by Paul Anthony collided with another automobile that was being driven in the opposite direction in the town of Altavista.- Anthony was tried by the mayor of Altavista on the charge of violating a town ordinance prohibiting the operation of a motor vehicle while intoxicated. The judgment of conviction was appealed to the Circuit Court of Campbell county, where, on June 29, 1940, a nolle prosequi was entered by the attorney for the Commonwealth.
The accused filed a plea of autrefois acquit based on the fact that the town of Altavista first convicted him, and, on appeal, refused to prosecute him further on a charge of violating the town ordinance against drunken driving, and that the State warrant upon which he was then being tried was a prosecution for the same act. “As the statute (sec. 4775) now reads, a prosecution under either the State statute or the municipal ordinance for one act, which is a violation of both, is not a bar to the prosecution for the same act by the other sovereign.” Malouf v. Roanoke, 177 Va. 846, 852, 13 S. E. (2d) 319. There was no error in sustaining the demurrer to the plea.
The accused contends that the verdict of the jury was contrary to the law and the evidence. The record shows that the evidence for the Commonwealth and for the accused was in sharp conflict. Witnesses for each side were positive in their statements. Some of the witnesses for the Commonwealth stated that the accused was drunk. Witnesses for the accused, who had equal opportunity to observe the accused and his demeanor before and after the wreck, were positive that he was sober and his actions normal. Under these circumstances, the finding of the jury on the issue of fact is binding upon the court.
The refusal of the court to continue the case on the ground of the absence of material witnesses is assigned as error.
When the case was called for trial, the attorney for the accused moved for a continuance. This motion was supported by an affidavit of the accused and the certificates of two doctors. The accused, in his affidavit, stated that two persons—Mrs. Paul Anthony, his wife, and T. B. Neal—had been duly summoned; that, to his personal knowledge, their evi
The certificates of the two doctors and the affidavit of the accused bring the motion well within the general rule, which entitles a litigant to a continuance.
In Vineyard v. Commonwealth, 143 Va. 546, 550, 129 S. E. 233, we said: “As a general rule, where a witness has been duly summoned and is absent on account of sickness, or for other cause, if the party causing the witness to be summoned makes affidavit that the testimony of the witness is material, not merely cumulative, and that he cannot safely go to trial without his testimony, a continuance ought to be granted, if there is reason for believing that the attendance of the witness can be secured at the next term; unless the court should be satisfied from the circumstances that the object of the motion was to delay the trial and not to prepare for it. Hewitt v. Commonwealth, 17 Gratt. (58 Va.) 629, 630; C. & O. Ry. Co. v. Newton, 117 Va. 260, 263, 85 S. E. 461; Lufty v. Commonwealth, 126 Va. 711, 100 S. E. 829.”
The two absent witnesses had testified in the former trial that resulted in a hung jury. Hence, the Commonwealth attorney and the trial judge had heard these witnesses testify and knew the materiality of their testimony. However, the trial court, over the objection of the accused, forced him to write out the facts to which these witnesses would testify. The Commonwealth attorney agreed that if the witnesses were present they would state the facts as written by the attorney for the accused. From this written statement it appears that Mrs. Anthony was the only witness who testified that she had been with her husband the entire day of the wreck, and that she knew that he had not taken a drink since lunch, several hours before the accident.
“Mr. Eades was there and talked to him where he was and did not say anything about him being under the influence of intoxicants. A number of officers were there and I did not hear any of them say anything about arresting him or about him being under the influence of intoxicants.
“Mr. Anthony has a sort of un-natural condition in the manner in which he uses his leg and I have known him to have this condition for a long time. He appears to stagger at all times.”
This testimony was to some extent cumulative, but no other witness stated that he had equal opportunity, as Mr. Neal did, to see and talk with the accused such a length of time, nor did any other witness go into details of his contact with Mr. Anthony at or subsequent to the wreck. In addition, Mr. Neal flatly contradicts some of the pertinent testimony of Eades, who seems to have been one of the star witnesses for the prosecution.
The trial court apparently recognized the applicability of the general rule to the facts. However, it based its action in overruling the motion on an exception. The court stated: “I don’t accept doctors’ certificates in a case like this. * * # . With reference to the motion for a continuance in this case the court is satisfied that they are not bona -fide and that the
“By Mr. Overbey: Your Honor, please, counsel for the defendant desires to except to the remarks made by the court in this case in the presence of the jury.
“By the Court: No jury is present.
“By Mr. Overbey: May I ask his Honor if the jury is not in the court room?
“By the Court: For the purposes of the record there is no jury. No, gentlemen, retire and agree upon the facts, and all of you gentlemen who were summonsed here to be on this jury retire from the court room.”
The desire of the trial court to prevent undue delay of the trial of the case is commendable. But this should not compel the court to force a litigant into trial in the absence of material witnesses, where such litigant has done all in his power to obtain their appearance and it appears with reasonable certainty that the witnesses will be available at a subsequent date. It is true that a final determination of this case had been long delayed, but this record does not show that this delay was due to any want of diligence on the part of the accused. The first prosecution was dismissed for reasons satisfactory to the Commonwealth attorney. The only previous trial before a jury had resulted in a mistrial. These results were not due to delaying tactics on the part of the accused.
There is not a scintilla of evidence in the record tending to show that the court was justified in stating that the motion for a continuance was not made in good faith. The non-judicial statement of the court, made in the presence of the veniremen who later qualified as jurors, was prejudicial to the accused. These jurors might well have inferred that the presiding judge did not think the testimony material, or, if material, that it was not entitled to credence. These jurors might have inferred also that the presiding judge was of opinion that the accused was guilty and that the motion for a continuance was simply a device to evade or postpone the trial of a guilty person.
All expressions of opinion, comments or conduct, which have a tendency to intimate to the jury the bias of the court with respect to the character or weight of the testi
In Burks Pl. & Prac. (3 Ed.) 420, it is said: “It is not the practice in Virginia to require the applicant to state what he expects to prove by the absent witness, unless the court doubts the motives of the applicant, and suspects that the object of the motion is merely to obtain delay.”
The application of the rule is withim the sound discretion of the trial court. However, when the disclosure of the expectant testimony is made—as it was made in this case— and the materiality of the testimony and its non-cumulative character is shown—as it was shown in this case,—failure to grant the motion constitutes reversible error. This error was aggravated by the remarks of the court in the presence of the prospective jurors.
The judgment of the trial court is reversed and the case remanded.
Reversed and remanded.