Robinson v. Commonwealth , 186 Va. 992 ( 1947 )

Gregory, J.,

delivered the opinion of the court.

Augustine Robinson was indicted under Code, section 4402 (Michie), commonly known aS the maiming statute, found guilty by a jury and his punishment fixed at a jail sentence of six months and a fine of $50 and costs. Judgment was entered on the verdict.

Stripped of immaterial details, the evidence, which we think amply supports the verdict, may be stated thus: Clarence Phillips testified that he was visiting in the home of Ella Kinney on the evening of November 14, 1946. While there the accused arrived and they exchanged greetings. Phillips testified that he asked the accused to pay him seventy-five cents which Phillips said the accused owed him. This seems to have made the accused angry and he cursed Phillips and started after him with a potato peeler with which he stabbed Phillips on the side of the neck.

The Commonwealth’s testimony disclosed that Phillips did nothing to bring on the trouble and that he tried to get away. This testimony is in conflict with that offered by the accused, but it is the testimony which we must accept on this review.

The foregoing statement is sufficient to justify this court in concluding that there is no merit in the assignment of error which challenges the sufficiency of the evidence to support the verdict.

The contention of counsel for the accused that the evidence of the prosecuting witness was not corroborated and therefore no conviction could rest upon it is not correct. In the first place, the evidence of the prosecuting witness was corroborated, and, in the second place, even if it were not, a conviction in this case could legally rest upon his uncorroborated testimony. There is an exception to the rule,—for example, in cases of seduction and perjury,—where the testimony of the prosecuting witness must be corroborated, but the present case does not fall within the exception. Nor corroboration was necessary in this case.

The main contention of the accused upon which he relies heavily for a reversal arises out of these facts: After the jury had retired to their room the sheriff responded to a knock on the. door of the jury room. The foreman told the sheriff that the jury wanted further instruction as to the punishment that could be fixed in this case. The sheriff then went to the clerk and the latter sent to the jury room a written statement which embodied the punishment fixed by the statute (sec. 4402). The statement was as follows: “He shall be punished by confinement in the penitentiary not less than one nor more than ten years, but if such act was done unlawfully but not maliciously, then he shall be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not- exceeding $500.”

Before the jury were sent to their room the court had instructed them orally but they evidently did not remember the punishment they could fix in the event they found the accused guilty. In these instructions was one in the identical language of the statute, as above set out.

The record is more significant for what it fails to disclose than for what actually appears. It does not disclose that the judge was not upon the bench when the foreman of the jury made the request for further instruction on penalties. It does not disclose that the clerk, in sending the paper to the jury, was not acting upon the direction of the court. It is admitted that it was done in the presence of the accused and without any objection from him or his counsel.

If what took place was in the presence of the court, and we must assume that it was, in the absence of any evidence to the contrary, and in the presence of the accused, which is admitted, and neither the accused nor his counsel made objection at the time, then this contentiont of the accused is without merit. If seasonable objection had been made the court no doubt would have corrected the irregularity, but counsel took his chances on a favorable verdict and when he was disappointed he sought to rely on the incident, after the verdict, upon his motion to set the verdict aside. This was too late.

It would have been preferable if the sheriff had informed the court of the foreman’s request and the court had directed t;hat the jury be brought in open court in the presence of the accused and it had then reiterated its- charge on the question of punishment. But we do not think the failure of the court to do this constitutes reversible error in this case.

The paper given the jury contained a correct charge as to the punishment which is fixed in the statute. It was identical with what had already been given them by the court. If it had embodied an incorrect charge the defect might have been serious.

There is no Virginia case directly in point. It is the practice of trial courts throughout the Commonwealth to give additional instruction to the jury after the case has been submitted to them if they or counsel request it, and the court, in its discretion, deems it proper. Often a jury is in disagreement and additional instruction will aid them in reaching a verdict,, but, as has been stated already, it is preferable that it be done in open court and in the presence of the accused.

Ordinarily all acts of the clerk of the court, done in the presence of the court and under its supervision, must be taken to be done by direction of the court. Such acts are the acts of the court. Mesmer v. Commonwealth, 26 Gratt. (67 Va.) 976.

In Mitchell v. Commonwealth, 89 Va. 826, 17 S. E. 480, the prisoner was being tried for rape. After the testimony had been concluded and the case had been argued the jury were directed to. retire to consider of their verdict. Just before they did retire the clerk of the court called their attention, as they stood in the jury box, to the charge as to the punishment which had been read to them along with the balance of the charge, and suggested that they take the same to their room with them,—all of which was done in the presence of the court. The charge as to punishment was on a separate piece of paper and it was returned by the jury into court with their verdict which was one of guilty, and the punishment was fixed at death. This court, in passing upon the point, had this to say: “This was but a repetition of so much of the charge, given by the clerk earlier in the proceedings, as respects the punishment prescribed by the statute. It is not pretended that the paper given the jury incorrectly stated the law; and we know no reason why, in this respect, the trial court should not call the attention of the jury to the law prescribing the punishment of the offense for which the prisoner stood indicted and was being tried. The proceeding complained of could, at the utmost, amount to no more than an instruction by the court to the jury.” That case is unlike the one at bar in some of the facts but it is the nearest to it that can be found.

In final analysis, this incident was no more than the court, upon request from the jury, reiterating a correct charge as to the statutory penalties, applicable to the case in the event the jury found the accused guilty. It was precisely what it already had instructed them orally. It is quite plain that the accused was’ not prejudiced in any manner by this incident.

The judgment is accordingly affirmed.

Affirmed.