132 Va. 648 | Va. | 1922
Lead Opinion
delivered the opinion of the court.
The defendant, John H. Draper, indicted, along with fourteen other alleged confederates, for conspiring and attempting to murder one Jim Coleman, was found guilty of an assault, and sentenced to serve a term of twelve months in jail and to pay a fine of $500.00.
The following brief preliminary statement of facts will be helpful to a proper understanding and disposition of the several questions arising on this writ of error:
On Sunday, March 20, 1920, Jim Coleman, a negro, was lodged in jail, charged with the murder of a white man named Rickman. That night an armed mob attacked the jail, and, having unsuccessfully attempted first to secure the keys from the jailer and then to break'down the doors,
The defendant denied that he was present or in any way involved in the attack on the jail, but his counsel concedes that there was evidence before the jury sufficient to war-' rant the verdict. He insists, however, that sundry errors were committed by the trial court to his prejudice, for which we are asked to award him a new trial.
1. The defendant tendered a, plea in abatement whereby he sought to have the indictment quashed on grounds stated in the plea, as follows: “Jas. S. Easley, the attorney for the Commonwealth, after the grand jury was sworn and had retired to their room to consider and deliberate on said verdict, went before said grand jury during their deliberation and advised said grand jury to find said indictment a true bill, and said attorney for the Commonwealth was not at the time he was before said grand jury and while they were deliberating on said indictment, acting as a duly sworn witness. And, by reason of said illegal conduct of said attorney for the Commonwealth, and of the said grand jury, this defendant has been injured and prejudiced and said indictment returned.”
Issue was joined on this plea, and Mr. Easley, attorney for the Commonwealth, being called as a witness, testified as follows:
*653 “I will state, from my recollection, that I was not sworn as a witness before the grand jury nor did I testify before the grand jury, but I was asked to appear before them, which I did. Those are the facts as I recollect them.
“Did you advise them to find an indictment?
“I did not; no, sir. I was not asked in regard to that. I asked them to strike off two names from the indictment; they asked me if they had a right to find' a true bill as to some and not as to others, and I told them they had a right to strike out those names, and they did take a pencil and strike out those two names. As I recollect, that is the question I was consulted about.
“I want to ask you, Mr. Easley, because you will recollect that I mentioned the matter to you several days ago, and my recollection is that you told me that you went before the grand jury, and not being willing to take the responsibility, you advised them to bring in an indictment.
“No, sir; I stated this: that I had stated to the grand jury when they were asking about the striking out of some names in the indictment, I stated that I had included in the indictment all the names of everybody about whom information had come to my office connected with this transaction, and it was probable that there was some names included in there that, when tried before a petty jury, they could not be convicted, but I felt it my duty to include in the indictment any names against whom I had information.
“I appeared there, but I did not hurt anybody; I struck off two names. I was inaccurate in saying it was done at my suggestion; I told them they had a right to do it. I want the record to be accurate about that.”
This being the only evidence introduced for or against the plea, the court rejected the same and refused to quash the indictment.
“It shall, however, be unlawful for any attorney for the Commonwealth to go before any grand jury during their deliberations, except when duly sworn to testify as a witness, but he may advise the foreman of the grand jury or any member or members thereof -in relation to the discharge of their duties.”
This statute (found in section 3988 of the Code of 1904) was construed by this court in Mullins v. Commonwealth, 115 Va. 945, 950, 79 S. E. 324. In that case, the attorney for the Commonwealth was in the grand jury room several times during the deliberations of that body at the term at which the indictment then in question w'a.s found, having* beep called there by the grand jury, not as a witness, but for consultation. He did not advise the finding of the Mullins indictment, and was not present when it was under consideration. This court, in an opinion by Judge Cardwell sustaining the action of the trial court in overruling the defendant’s plea and refusing to quash the indictment, said:
“Section 3988 of the Code of 1904 does declare it unlawful for any attorney for the Commonwealth to go before any grand jury during their deliberations, except when duly sworn to testify as a witness, with the qualification that ‘he may advise the foreman of the grand jury or any members thereof in relation to the discharge of their duties.’ It is unquestionably the policy of the statute, as has been the practice in this jurisdiction, to keep the grand jury independent of all outside interference, free and untrammeled in their deliberations, and while it is highly reprehensible for any attorney for the Commonwealth to violate in any degree either the terms or the policy of the statute, it would be a strained construction of it, upon the facts in this case, to say there has been such a disregard thereof as was or might have been injurious and prejudicial to the ac*655 cused -and calling for a dismissal of the indictment against him, upon the ground that it was returned by the grand jury because the attorney for the Commonwealth went before the grand jury while they were in session at the July term of the court, 1912, at which term this indictment was found and returned into court.”
Under these circumstances, it seems reasonably certain that no actual harm was suffered by the prisoner as the result of Mr. Easley’s visit to the jury room. If he had given the same advice to the foreman, or to one or all of the members of the grand jury, outside of the room, he would have been strictly within the requirements of the law, and precisely the same indictment would have been found. It would be contrary to the Mullins Case, and likewise con
The undoubted purpose of the statute was to preserve privacy of deliberation and independence of action by the grand jurors, free from outside control or influence. These considerations have always been regarded in law as essential to a safe and proper discharge of duty by inquisitorial bodies of this character, and the statute can hardly be regarded as anything more than declaratory of the general law. It is said in 10 Enc. Pl. & Pr., page 398: “As heretofore stated, indictments must be found by authorized grand jurors, other persons being excluded from participation, and the action of the grand jury in finding or refusing to find indictments cannot be interfered with or influenced by any person whatsoever. Statutes have been generally enacted for the purpose of preserving the privacy of deliberations of the grand jury. But the rule does not prohibit the presence of authorized officers, at least up to the time of the action of the grand jury in determining the result. Thus the prosecuting attorney is the legal adviser of the grand jury in respect of the manner of its proceeding, and may be present and assist it by his counsel. But he can act only as adviser, and has no right to exercise any manner of control over its actions.”
The authorities generally, independent of statute, are to. the above effect. We do not wish in the least degree to weaken or impair the sound policy of the law which seeks to secure free and independent action on the part of the grand jury; but the conduct of the attorney for the Commonwealth, as approved by the trial court in this case, can hardly be regarded as a substantial violation of such policy, and it certainly did not result in a substantial violation of the rights of the accused.
All of this testimony and examination was allowed over the objection and exception of the prisoner; and it is argued that the clear purpose thereof was to create the impression upon the jury that Clark Draper would have been a material witness against the defendant, and that he was, therefore, responsible for his brother’s nonappearance as a witness'.
We do not perceive that the prisoner could have been prejudiced by the testimony recited above and what occurred in connection therewith. It is said in the brief for the prisoner that there was no other evidence in the record about Clark Draper, but this is a mistake. A witness for the Commonwealth had testified that he and Clark Draper had been with John Draper and the other members of the mob shortly before the assault on the jail, and had restrained him from shooting at a certain colored man on the way. If this statement was true, then Clark Draper would have been a material witness for the Commonwealth; and if it was not true, he would have been a material witness for the defendant. Under these circumstances, the Commonwealth had the right to show that it had attempted to procure Clark Draper as a witness, and further, to inquire of both the prisoner and his father whether they knew the whereabouts of Clark Draper and whether they had anything to do with keeping him away from the trial. The fact that they did not attempt to produce Clark Draper or
The court refused to give the instruction just quoted, but gave, in lieu thereof, the following:
“The court instructs the jury that, while they may find a verdict upon the unsupported testimony of an accomplice, such evidence is to be received with great caution, and the court, in this case, warns the jury of the danger of basing a verdict on the unsupported testimony of an accomplice.”
Counsel for the prisoner admitted that the instruction given by the courts was a proper substitute for the first part of the instruction as asked for by him, but insists that
“The court instructs the jury that the burden rests upon the Commonwealth to make out its case against the accused to the exclusion of a reasonable doubt, but where the ac*661 cused relies upon or attempts to prove an alibi in his defense, the burden of proving the alibi rests upon him.”
The proposition contained in the concluding part of the foregoing instruction gives rise to the question here under .consideration. That proposition, standing alone, would indicate that there must be a preponderance of evidence for the alibi, and would constitute reversible error were it not rendered harmless by the context, and by the language of other instructions in the case.
The Commonwealth was trying the accused upon the theory that he was present and actively participating in the unlawful acts of the mob at the jail. There was certainly no burden of any sort on the defendant to show that he was not there until the Commonwealth had made a prima facie case against him. The burden was on the Commonwealth to show his presence beyond a reasonable doubt. That fact was an essential part of its case. 12 Cyc. 384, text and cases cited in note 18.
The case of Luccchesi v. Commonwealth, 122 Va. 872, 883, 94 S. E. 925, relied on by the Commonwealth, is not in point. The defense there was distinctly affirmative, and the instruction on burden of proof was not questioned in that particular. The objection made to it was on another ground.
The opinion in the McQueen Case shows that the comments of the trial judge in charging the jury in that case upon the subject of alibi were such as to lead them to think that the defendant must prove his alibi by a preponderance of evidence, and this was held to be error.
In Beale’s Crim. Pl. & Pr., section 289, it is said: “Thus, where the evidence offered by the defendant is of an alibi —that is, that he was at another place at the time the crime was committed, and therefore could not have committed it—he is obviously merely disproving the truth of the prosecution’s evidence or inference from evidence; he is making an absolutely negative defense. It is not for him to establish an alibi, but simply to throw doubt on the case of the prosecution. Clearly, therefore, when he produces evidence tending to prove an alibi, no burden is on him; if he raises a reasonable doubt of the charge, he is to be acquitted.” See also 4 Wigmore on Evidence, p. 3561, sec. 2512, par. (a), and cases cited in note 3.
We approve the following statement from the text in 2 Am. & Eng. Enc. (2nd Ed.), page 56: “The true doctrine seems to be that where the State has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused'.” See also State v. Lowry, 42 W. Va. 205, 212, 24 S. E. 561; 12 Cyc. 384, text and cases cited in note 18; 8 Ruling Case Law, p. 224, sec. 220, and cases in note 12.
The learned judge of the trial court in the instant case evidently acted upon the authority of Thompson v. Commonwealth, 88 Va. 45, 47, 13 S. E. 304, in which it was held that an instruction for the Commonwealth containing the identical language objected to in this case was not erroneous, because the instruction containing that language, and also an instruction given in the case for the defendant, made it clear that the burden was on the Commonwealth to prove beyond a reasonable doubt everything essential to the establishment of the charge in the indictment. Exactly the same thing is true in this case as in the Thompson Case. The instruction complained of starts out with the proposition “that the burden rests upon the Commonwealth to make out its case against the accused to the exclusion of a reasonable
“The court instructs the jury that the law presumes every person charged with crime to be innocent until the Commonwealth has established his guilt by evidence so strong, so clear, and so conclusive, that there is left in the minds of the jury no reasonable doubt as to his guilt. This presumption is an abiding presumption, and goes with the accused through the entire case ’and applies at every stage thereof until repelled by proof.
“And in this connection the jury is instructed that it is never sufficient that the accused, upon speculative theory or conjecture, may be guilty; or that by the preponderance of the testimony his guilt is more probable than his innocence ; for until his guilt has been proved beyond all reasonable doubt in the precise and narrow terms as charged in the indictment, the presumption of innocence still applies, and they must acquit him.”
We feel entirely safe in deciding that the Commonwealth’s instruction No. 1, here complained of, could not have prejudiced the defendant. If the evidence in respect to the alibi left any doubt in the minds of the jury as to his presence and participation in the crime, it necessarily left a doubt in .their minds as to his guilt, and in that event they were bound to acquit him under the unmistakable directions of the court.
Assuming that the term “moonshiners,” as used by the attorney for the Commonwealth and as understood by the jury, was meant to describe persons engaged in the illicit manufacture and sale of ardent spirits, there was no evidence in the record to show that the members of the mob belonged to that particular class of law breakers, unless the fact that they seem, to have stolen two or three “worms” from the jail, and were themselves under the influence of whiskey, tended to prove that fact. The proof that they did “shoot up the town,” in the common acceptation of that expression; frighten women and children, break into the jail, and destroy, or certainly injure the county’s property, was altogether sufficient to justify wha,t the Commonwealth’s attorney said in that respect, if he had any right to refer to the general conduct of the mob. in connection with the principal charge against this defendant.
It is true that Draper was not being tried for any of the things to which the above-quoted language of the attorney for the Commonwealth referred, and, strictly speaking, the attorney might more appropriately have invoked the necessity of enforcing the law, and thus preserving the peace and good order of the community, by a criticism of what was the ultimate purpose of the mob, but the essence of the appeal which the Commonwealth’s attorney made to the jury was right and proper. Men who come by night, intoxicated and armed, to take the law in their own hands, and interfere by force and violence with a due and orderly administration of justice, ¡and with the proper discharge
There are other errors assigned in the petition upon which this writ was granted, but they were expressly waived at the oral argument.
For the reasons stated, the judgment complained of is affirmed.
Affirmed.
Dissenting Opinion
dissenting:
Section 4864 of the Code, quoted in the opinion of the court, belongs to the class of statutes known as criminal statutes, and should be strictly construed against the Com
■I also think that the instruction on the subject of alibi is contradictory and misleading. The latter part of it is plainly wrong, as pointed out in the opinion. When the instruction is read as a whole, it apparently says that, as a general rule, the Commonwealth must make out its case against the accused to the exclusion of a reasonable doubt, but that the defense of alibi is an exception to this rule, and if the accused relies upon it, “the burden of proving the alibi rests upon him.”