In re Cutchin, 113 Va. 452

113 Va. 452 | Va. | 1912

By the Court:

A special grand jury of the Corporation Court of the city of Roanoke made a report on the 29th of March, 1911, tending to show misfeasance, malfeasance, and gross neglect of official duty on the part of Joel H. Cutchin, as mayor of the city of Roanoke, and recommending to the court that such proceedings be had as are provided by law for his removal from said office; and thereupon the court summoned Joel H. Cutchin, mayor as aforesaid, to appear before the corporation court on Monday, the 24th day of April, 1911, to show cause why he should not be removed from the said office of mayor of the city of Roanoke.

This proceeding was had under section 1033 of the Code, which, so far as applicable to this case, is as follows: “The corporation court of a city may remove the mayor of said city from office for malfeasance, misfeasance, or gross neglect of official duty, and such removal shall be deemed a vacation of the office. All proceedings against a mayor for the purpose of removing him from office shall be by order of or motion before said court, upon reasonable notice to the party affected thereby, and with the right to said party of an appeal to the supreme court of appeals.”

The charges which the mayor was called upon to answer were numerous, embracing his conduct with reference to houses of ill fame, gambling houses, his refusal to investigate the conduct •of police officers, and various specifications of those charges. The mayor appeared, and, at the conclusion of the evidence in chief in support of the rule against him, the court (Judge J. M. Mullen, of Petersburg, presiding) being of opinion that the interests of justice would be subserved thereby, amended the rule, and substituted in lieu thereof four charges, which are as follows:

“ 1st. That the said Joel H. Cutchin, mayor of the city of Roanoke, aforesaid, did, at divers times during his present term of office, unlawfully and wilfully neglect and refuse to enforce the laws of the State of Virginia and the ordinances of the city of Roanoke against certain houses of ill fame within said city.

“ 2d. That the said Joel H. Cutchin, mayor of the city of Roanoke, did, at divers times during his present term of office, unlawfully and wilfully permit, encourage, connive at, and advise the keeping of certain houses of ill fame in said city of Roanoke, and the maintenance of the same.

• “3d. That the said Joel H. Cutchin, mayor of the city of Roanoke, aforesaid, did, at divers times during his present term of office, unlawfully, wilfully, and corruptly neglect and refuse to enforce the laws of the State of Virginia and the. ordinances of the city of Roanoke against certain houses of ill fame within said city.

“4th. That the said Joel H. Cutchin, mayor of the city of Roanoke, aforesaid, did, at divers times during his present term of office, unlawfully, wilfully, and corruptly permit and encourage and connive at and advise the keeping of certain houses of ill fame in the city of Roanoke, and the maintenance of the same.”

After all the evidence in support of and in answer to the rule had been introduced, and the jury had been fully instructed, a verdict was returned, finding the mayor guilty upon all four of the charges; and thereupon the court entered judgment vacating the office of mayor of the city of Roanoke. To this order a writ of error1 was awarded, which brings in review certain rulings of the court made during the trial, in the admission and rejection of evidence, in instructions given and refused, and on the motion to set aside the verdict as contrary to the law and the evidence.

Plaintiff in error complains that the court directed an amendment of the rule after the testimony in support of the rule, as originally framed, had been introduced; but it is certain that this action of the court was not prejudicial to the plaintiff in error, but was to his benefit rather than otherwise, as it limited the range of inquiry and reduced the charges to the conduct of the mayor with reference to houses of ill fame, omitting all reference to other offenses originally alleged against him. It operated no surprise, diminished no means of defense, and abridged no right which he would otherwise have enjoyed.

The first assignment of error in the petition relates to the instructions given and refused by the court; but we deem it expedient to deal first with those with respect to the admission of testimony.

Assignment of error No. 3 is founded upon bill of exceptions No. 4, taken during the progress of the trial, because A. H. Griffin was permitted to read a newspaper publication to the jury, purporting to be a speech made by the mayor some time in the year 1909, which was objected to because it was not sufficiently shown that the publication contained the exact language of the mayor, and because there was nothing in the speech that was relevant to any issue in the cause.

We think it was sufficiently identified by the evidence of Griffin and by the testimony of the mayor. In answer to a question from the court, counsel for the defense said: “We admit that the mayor made that address, and we admit that it was published in the newspapers the next morning; but we do not admit the relevancy of it.” But this objection is, we think, without force. One of the necessary elements of the inquiry under consideration was to bring home knowledge of existing conditions to the mayor, and that address seems to bear forcibly upon that point. At one period during his administration the situation with respect to houses of ill fame seems to have been turned over by the mayor to the control of the chief of police. That control lasted for about four months; and in the address he uses the following language: “ I have decided to assume the position occupied by me ever since I have been mayor, except the past four months. * * * Bad results have followed the attempt to break up houses of ill fame. The police have been unable to change the heart and inclination of such people, and have simply scattered them about the city, to the disgust, danger, and annoyance of respectable people.” This assignment of error is overruled.

Assignment of error No. 4 is based upon bills of exceptions 5,10, 11, 12, and 13, all of which deal with the evidence of one Maggie Ferguson.

The record shows that Maggie Ferguson, a negress,' had been conducting a house of ill fame in the city of Roanoke; that at the time she testified she had been convicted of a felony, and that the verdict of the jury fixed her punishment at eight years in the State penitentiary. She testified that the mayor had given her permission to conduct a house of ill fame in the city of Roanoke and to keep white girls as inmates. She also testified as to having had intimate personal relations with the mayor, and the prosecution sought to support her statements by proving that, prior to the mayor’s giving her this alleged permission, she asked other officers for such permission, and was-referred to the mayor, and by proving by a number of police officers that prior to this prosecution she had told them that the mayor had given her such permission, thus attempting to support her statements made in court by proof of the fact that similar statements had been made by her out of court.

The rule, without doubt, is that self-serving statements made out of court cannot be shown in order to corroborate the testimony of a witness. But there are well-established exceptions.

It appears that counsel for the defense examined this witness as to why she had not been sentenced after conviction by the jury,' and brought out the fact that she had been convicted at a prior term, but that sentence had not been pronounced upon her. It appears further that counsel for the defense brought out the fact that Mayor Cutchin was not put on the stand at the trial of this woman to prove that she had been given permission to commit the crime for which she had been sentenced to the pentitentiary, and it was further shown that Mayor Cutchin had refused to come and testify for her at the time of her trial. The inference which was sought to be deduced from these facts was a bias or spite against the mayor by reason of his refusal to testify in her behalf. The witness was subjected to a severe cross-examination by counsel for the defense as to previous statements made by her, and we are of opinion that the ruling of the court comes within the exception to the rule.

In Howard v. Commonwealth, 81 Va. 490, an attempt was made to discredit a witness by showing malice growing out of an arrest for larceny, and the court said: “To repel the attack thus made, it was competent for the prosecution to prove that prior to his arrest the'witness gave the same account of the matter that he gave on the trial.” The opinion cites Robb v. Hackley, 23 Wend. (N. Y.) 50, where it is said: “If an attempt is made to discredit the witness, on the ground that his testimony is given under the influence of some motive prompting him to make a false or colored statement, the party calling him has been allowed to show, in reply, that the witness made similar declarations at a time when the imputed motive did not exist.”

In Rice’s Criminal Evidence, sec. 241, the law is thus stated: “Where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So, in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen.”

And in Wigmore on Evidence, section 1128, the law is very clearly and specifically stated, as follows: “A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement, in the form now uttered, was independent of the discrediting influence.”

In Jessie v. Commonwealth, 112 Va. 887, 71 S. E. 612, this court held, after reviewing a number of authorities, that it was competent for the prosecution to meet an attempt to discredit the witness, by showing that he himself had been charged with murder, by proving that before the assertion of that charge the witness had made the same declaration as to the guilty agent out of court that he afterwards testified to in court.

To the suggestion of counsel for the defense that the statement to the officers was fabricated for the purpose of throwing them' off their guard and preventing arrest, the answer by counsel for the prosecution is ample, that the witness could not have known but that the police officers would report her statement to the mayor for confirmation, in which most probable event she would have been caught in her own snare.

Assignment of error No. 5 rests upon bills of exceptions 6 and 7, and deals with the evidence of Rose Turner. This woman had kept a house of ill fame in Roanoke, which had been broken up by the authorities. She left the city for a time, and, wishing to return, opened negotiations with Mr. Penn, to see if she could not be permitted to come back; and she came back and opened a house on High street. This evidence was objected to by counsel for the defendant on the ground that he was not shown to be in any way connected with Mr. Penn; “ * * * but the court, being assured by counsel for prosecution that they would connect it, permitted said questions to be asked and said answers to be given; but the same were not connected, as the record will show, and the court’s attention not being called to this failure, it did not rule further on the motion to exclude, and said evidence went to the jury,” and to this action of the court the defendant excepted.

What the court did was but the equivalent of saying to counsel, “I will not rule upon this question for the present, the Commonwealth having undertaken to connect the mayor with this evidence; but if that is not done, and this objection shall be renewed, the evidence will be excluded”; and the sole question is, upon whom lay the burden to make the subsequent objection to its introduction, and to ask for its exclusion? To require the court to bear all these matters in mind during a protracted trial would be to impose upon it a burden not conducive to the proper administration of justice. It is the business of counsel to bring such matters to the attention of the court. Counsel may have waived the objection. They may have regarded it as immaterial. But, however that may be, it was the duty of counsel, and not that of the court, to renew the objection to the admission of testimony.

In Lundvick v. National Union Fire Ins. Co., 128 Iowa 347, 103 N. W. 970, it is said that “though, on the statement of counsel that he will 'connect this further on,’ testimony incompetent, so far as the record discloses, is admitted over objection, and it is not made competent by further testimony, error is waived by failure to move to strike.”

In Brady v. Finn, 162 Mass. 260, 38 N. E. 506, it is said: “An exception to the admission of evidence which it was within the discretion of the judge to admit when offered, although it might have been excluded until further testimony had been put in, can not be sustained if, no such testimony having been introduced, the excepting party, at the close of the evidence, did not request that the evidence objected to be stricken out, and that the jury be instructed to disregard.”

In Doon v. Felton, 203 Mass. 267, 89 N. E., 539, it was held that “where evidence was admitted on statement of plaintiff’s counsel that he would offer evidence to connect the subject of the evidence with the defendant, upon plaintiff’s failure to offer that evidence, defendant should have moved to strike out the evidence, and, not having done so, he has no ground of exception.”

To the same effect is Ducharme v. Holyoke St. Ry. Co., 203 Mass. 384, 89 N. E. 561. See also N. & W. Ry. Co. v. Anderson, 90 Va. 1, 17 S. E. 757, 44 Am. St. Rep. 884; Moore Lumber Corporation v. Walker, 110 Va. 775, 67 S. E. 757.

Assignment of error No. 6 rests upon bills of exceptions 8 and 9. J. L. Manning and J. T. Reynolds, police officers of the city of Roanoke, testified that one Vici Isom, a keeper of a house of ill fame, had caused them to be removed from their beats because they interfered with her in her violation of the law. H. N. Dyer, •chief of police, testified that the mayor gave him orders to remove these officers from this beat by reason of complaint from women up there, and that he gave the orders to the sergeant in ■charge (Sergeant Overstreet), and the officers testified that this :sergeant changed their beats. We have, then, this sequence •of events: Vici Isom threatened that she would have Manning .and Reynolds removed from their beats; the chief of police testified that the mayor gave him orders to remove these officers by reason of complaints from the women up there, and that, in ■obedience to the mayor’s direction, he gave orders to Sergeant •Overstreet for their removal, and they were, in point of fact, removed. These events seem to be so reasonably connected and -dependent the one upon the other in the chain of causation as to render them admissible in evidence upon the charge of malfeasance in office.

Assignment of error No. 7 calls in question the rulings shown ‘in bills of exceptions 14 and 15. They deal with the witness, Bertie A. Martin, who testified that she was in the defendant’s office two years ago; that he locked the door, put the key in his •pocket, pulled down the blinds, and commenced to take liberties with her; that she commenced to cry, and finally he let her go.

In order to impeach this testimony, witnesses were offered to prove her reputation for chastity, but the court declined to allow the defendant to introduce proof along that line.

In Langhorne’s case, 76 Va. 1012, it was held that it was not permissible to ask a witness if he had not been convicted of an ■ offense which did not involve his character for truth on oath.

And in Uhl’s case, 6 Gratt. (47 Va.) 706, it was held that the record of the conviction of a witness for petty larceny in another State is not admissible evidence to impeach the veracity of the witness. And it was further held that a party seeking to impeach .a witness will not be allowed to ask what the general character of the witness is in relation to other matters, as well as to his veracity.

Any other rule would involve the court in an endless investigation of matters wholly collateral to the issue under trial.

Assignment of error No. 8 presents this question: The defendant offered to prove by a number of witnesses, leading citizens of Roanoke, that during defendant’s incumbency of the office of mayor, from 1902 down to the present time, notwithstanding the large increase in population, the number of houses of ill fame in the city of Roanoke had been largely decreased, and that the moral conditions of the city had been greatly improved, and that there was very much less disorder in any of said houses; but the court refused to allow the evidence to go to the jury.

The evidence offered was wholly irrelevant. It tended neither to prove nor to disprove the charges under consideration. Grant that the number of houses had diminished, that the moral conditions of the city had improved, and that there was less disorder in those houses than formerly, yet if the mayor had unlawfully, wilfully, and corruptly neglected and refused to enforce the laws, of the State of Virginia and the ordinances of the city of Roanoke against houses of ill fame, he would have been guilty as charged, although, during the course of his administration, all the things-sought to be proved in his favor had been conclusively shown to the jury. It is our boast that ours is a government of law and not of men. No officer may substitute his discretion in the place of the law, which alone expresses the will and policy of the State.

Assignment of error No. 9 rests upon bill of exceptions No. 17. The defendant, to maintain the issue on his part, introduced, as a witness Joel H. Cutchin, in his own behalf, and the following extract from a letter from him to the chief of police was read: “I also desire you to have before the court any persons keeping, a house of ill fame on Earnest avenue west of the alley from Salem avenue to Earnest' avenue, alongside the office and wareroom of the Central Manufacturing Company, leaving that portion of Earnest avenue east of the said alley undisturbed for the present, but have such regulation as you see proper.” And the witness was asked: “What did you mean by ‘but have such regulation as you see proper’?” A. “For him to use his discretion in handling: that matter.” Counsel for the prosecution objected to said question and the answer thereto, and the court sustained the objection, to which action of the court the defendant excepted.

With respect to this question and answer, it seems to us wholly immaterial. It throws no light upon the letter, but merely re-states the phrase which he was asked to explain by the use of substantially identical terms.

Counsel for the defendant then stated: “I observe this passage in this letter: ‘It is not my intention to interfere with High street, or with those at present located on the property of R. H. Angelí; but of course this does not mean to say that you are not to run every one out of the city if you think proper.’ I want to know what you mean by saying, ‘It is not my intention to interfere with High street, or with those at present located on the property of R. H. Angelí.’ What did you mean by interference for the present with High street?” At this point counsel for the prosecution interposed an objection to the question and any answer that might be given thereto, and the objection was sustained. Counsel for the defendant thereupon asked: “Then you state in this letter, ‘It is not my intention to interfere with High street.’ Was it your intention to interfere everywhere else than High street?” The prosecution again objected, and the court sustained the objection; to all of which rulings of the court the defendant excepted.

With reference to the second and third questions propounded, it is sufficient to say that the exceptor does not vouch the answer which he expected to elicit. See Stoneman v. Commonwealth, 25 Gratt. (66 Va.) 887, the syllabus of which states: “An objection to a question asked and to the witness answering it is overruled, and an exception taken which does not state the answer. The appellate court cannot consider it.” The same proposition has been frequently decided by this court, and is, indeed, so well established as not to require authority in support of it.

The evidence was in any event inadmissible. No mistake with respect to the letter was claimed and no ambiguity in it appears, and there was, therefore, nothing to explain.

Assignment of error No. 10 is sufficiently disposed of by what has been said with reference to assignment of error No. 8.

Assignment of error' No. 11 calls in question the ruling of the court as set forth in bills of exceptions 19 and 20, which deal with an occurrence that took place in 1903, when a warrant was brought against Yici Isom to recover money which was alleged she owed. Mayor Cutchin was her counsel, and, under his direction, she pleaded that the debt was paid, and, upon further examination, it appeared that payment was made by illicit intercourse between herself and the agent of the plaintiff.

The exceptions in each of the bills relating to this matter are based, not upon the fact that the occurrences took place in 1903, before the beginning of the mayor’s present term of office, but that the evidence was immaterial, irrelevant, impertinent, collateral, and too remote. The court was not called upon by bills of exceptions 19 and 20 to rule upon the admissibility of evidence relating to what occurred prior to the beginning of the present term of the mayor. We feel confident in stating that no objection upon that ground was taken to the admission of evidence during the entire trial—certainly it has been so asserted by counsel for the defendants in error, no instance of it has been pointed out to us by counsel for plaintiff in error, and our researches into this very, voluminous record have not disclosed to us any such ruling upon the part of the court. When the court came to give instructions to the jury it told them that “they must believe from the evidence that, during his present term of office, which the evidence shows began September 1, 1908, he unlawfully and wilfully neglected or refused to enforce the ordinances of the city of Roanoke against houses óf ill fame within said city; or they must believe that during his present term of office he unlawfully and wilfully permitted, encouraged, connived at, or advised the keeping of such houses within said city”; and the same proposition was presented in another instruction. So that the jury could not possibly have been misled into the belief that the mayor could be found guilty, except for some act of omission or commission during his present term of office.

We are of opinion that there was no error committed by the court in the admission or exclusion of testimony.

From bill of exceptions No. 21 it appears that the plaintiff in error moved the court to allow the jury to view the room which the mayor used as his office at the time of the alleged incident related by the witness Bertie Martin, who had testified that when she visited the mayor’s office he had first locked the door and then taken liberties with her person; the object of the view being to show that the door could not be locked from the inside. The motion of the plaintiff in error, being objected to, was refused by the court.

It not infrequently happens that in cases of homicide, in actions for damages for negligence, in suits to establish boundary lines, and in other instances, the jury are taken to the scene of the. subject of investigation,- in order that by a personal inspection, of the locality they may be enabled intelligently to apply the. evidence; but this is not one of the absolute rights of the litigant. It rests in the sound discretion of the court—a judicial discretion, it may be, which this court will, under proper circumstances,, review; but there is nothing in the record in this case to show that such a view would have been helpful. The testimony of the witnesses was all sufficient to explain the situation. The view of a jury, in any case, is of indeterminate probative value, and should be resorted to only where there is a reasonable certainty that it will give the jury substantial aid in reaching a right verdict.

The condition of the lock—whether it would lock upon one: side or the other—offered no difficulty which the jury could not. as readily solve by the testimony of others as by a personal inspection.

Counsel for plaintiff in error asked for eighteen instructions, all of which the court refused, but in lieu thereof gave to the-jury twelve, as sufficiently presenting the law of the case. We have considered these instructions, and, while we do not mean to say that none of those offered by the defendant correctly propounded the law, or that some of them might not have been given with propriety, we are of opinion that those which the court gave of its own motion correctly propounded the law, and were amply sufficient to guide the jury in their deliberations.

Viewed as upon a demurrer to the evidence, there can be no. doubt that the evidence was sufficient to maintain the verdict. We are, indeed, of opinion that the verdict of the jury was in strict, accordance with the preponderance of the evidence.

Counsel for plaintiff in error animadvert somewhat upon the conduct of the grand jury in this case, and seem to be of the opinion that, in making the report upon the conduct of the mayor, the grand jury had transcended its duty. In this view we cannot concur. “To examine into accusations against persons charged with crime, and, if they see just cause, to find bills of indictment against them, and to act in such public matters as may be brought before them, such as inquiries into misfeasance in office, prevalence of crime, and public nuisances,” are among the recognized duties of grand j uries (Webster’s Dictionary), sometimes neglected, it is true, but which, when faithfully performed, deserve public commendation.

Upon the whole case, we are of opinion that there' is no error disclosed by the- record, and the judgment of the corporation court is affirmed.

Affirmed.