Baylor v. Commonwealth , 190 Va. 116 ( 1949 )

Hudgins, C. J.,

concurring in part and dissenting in part.

I concur in so much of the foregoing opinion which holds that the 1924 amendment (Acts 1924, p. 637) to Code, sec. 4781, expressly declares that the trial justice is an incompetent witness against the accused in a court of record as to statements made by the accused on the trial before him. I also concur in the conclusion that elimination of the testimony of the trial justice does not leave in the record sufficient evidence to sustain the judgment of conviction.

But I do not agree with that part of the opinion which holds that the admission' or confession of guilt of the accused made before the trial justice is inadmissible when proven by competent witnesses. The statute does not purport to change or modify the rules of evidence governing the admissibility of such statements, but provides that they cannot be proven by a police or trial justice even when voluntarily made before him in his official capacity.

Code, sec. 4989, gives the accused the right to appeal from a conviction of the trial justice even though that conviction was based on his plea of guilty. On such an appeal the case “shall be heard de novo” This means that the appeal shall be tried “anew, afresh, over again, a second time.” Black’s Law Dictionary, Deluxe Edition; Ballentine’s Law Dictionary, 1st ed.

This court not infrequently reverses the judgment of a' lower court and remands the case for a new trial, but such re-trial does not mean that the general law governing the rule of evidence is affected one way or other. Any pertinent evidence on the issues joined is admissible' on the new trial regardless of whether or not such evidence was introduced on the former trial. The same reasons apply on an appeal from the judgment of the police court. The provision that the case should be heard de novo does not contemplate any change in the rules on admission or rejection of evidence.

The general rule is that a voluntary plea of guilty on a preliminary hearing before a committing magistrate by one charged with a felony is admissible in evidence as a confession or admission of guilt in the subsequent trial of the accused on the indictment. “Oral confessions may be proven by any one by whom they are heard, the same as any other fact.” 2 Wharton’s Criminal Evidence, 11th Ed., sec. 606, p. 1012; Annotation 141 A. L. R., p. 1335.

We held in Collins v. Commonwealth, 123 Va. 815, 96 S. E. 826, that the statement of an accused before a committing magistrate that he, the accused, “wanted to plead guilty to the charge,” was not a judicial confession, because it was not made before a court competent to try the pending prosecution, but such statement was admissible as an extrajudicial confession.

If the admission or confession of an accused, when made before a committing magistrate, is admissible, it would seem that such admission or confession, when made before a court competent to try the case, would be likewise admissible. In the first instance, the committing magistrate is charged with the duty of determining whether the evidence for the Commonwealth is sufficient to hold the accused for further action. In the second instance, the police justice is charged with the duty of passing upon the guilt or innocence of the accused. There is no more reason to reject the statement of the accused in one case than it is in the other. Indeed, the reason to admit the statement seems stronger in the latter cause than in the former. There is nothing in either code, section 4989, or section 4990, which purports to change or modify this rule.

Here the judgment of conviction should be reversed be-caused the Commonwealth or trial judge attempted to prove an admissible fact by an incompetent witness. Of course, the accused should be given every opportunity to explain why, or the circumstances under which he made the confession. The weight to be given his confession, like other evidence, is a question for the jury or' the judge trying the case without a jury.