Hagood v. Commonwealth

Holt, J., delivered the opinion of the court. Milburn T. Neal was suspected of neglecting or of maltreating his wife and for that reason he was, on the morning of May 21, 1930, between the hours of twelve and one, called from his bed and taken from his home by a group of persons who then whipped him until he vomited. Thereafter this indictment was returned: “The grand jurors of the Commonwealth of Virginia, in and for the body of the county of Mecklenburg, and now attending upon the circuit court thereof at its August term, 1930, upon their oaths present: “That on or about May 21, 1930, in the said county of Mecklenburg and within the jurisdiction of this court, John L. Hagood, Joe Hagood, Archer Thompson, Elmo Ranes, Oscar Cleaton, G. G. Martin, Bernard Cleaton and Frank Martin, composing a mob, did unlawfully and feloniously commit an assault and battery upon Milburn T. Neal, without authority of law, against the peace and dignity of the Commonwealth.” Upon it in due course J. L. Hagood was tried, convicted and sentenced to four years confinement in the State penitentiary. That judgment is now before us on a writ of error. At the trial a general demurrer was interposed but the reasons relied upon for its support were not stated. Ordinarily this is insufficient. Jayne v. Kane, 140 Va. 27, 124 S. E. 247. But where constitutional rights are invaded they may be set up by general demurrer or otherwise, at any time, and even in this court for the first time. Adkins v. Richmond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583, 81 Am. St. Rep. 705. — 923 — For the accused, it is said that this indictment does not inform him of the “cause and nature of his accusation” (section 8, Const. 1902, Va.), and that it is impossible to tell whether it is framed under section 4532 of the Code, which provides for the punishment of rioters, or under what is commonly known as the “lynch law.” See Acts of 1928, at page 715, chapter 213. It is of course necessary for an indictment to set forth all of the essential elements of the crime and if any of them are omitted it is fatally defective. If those things there charged may be true and if the accused may still not be guilty it is insufficient. This is everywhere conceded and is the unquestioned law of Virginia, and so it is not necessary for us to buttress by authority an undisputed proposition. Of course when every fact necessary for conviction appears that is enough, and it likewise is sufficient if they appear by necessary implication. As we shall hereafter see this indictment follows the language of the statute. “The indictment pursues the language of the statute; and this is generally sufficient. The rule laid down by the authorities is, if every fact necessary to constitute the offense is charged or necessarily implied by following the language of the statute, the indictment will undoubtedly be sufficient.” Helfrick v. Commonwealth, 29 Gratt. (70 Va.) 844, 845. If there was any uncertainty in the mind of the defendant that could have been cleared up by a bill of particulars, but he did not ask for it. Such a bill is no substitute for an indictment and cannot make one that is bad, good, but it may supplement it and make certain that which had theretofore been stated only in general terms. “The indictment, of course, must charge the offense, and if it fails to give the information necessary to enable the — 924 — defendant to concert his defense, such information may be supplied by a bill of particulars; but if the offense is not charged in the indictment, the defect cannot be supplied by a bill of particulars. A bill of particulars may supply the fault of generality or uncertainty, but not the omission of an essential averment of the indictment.” Pine v. Commonwealth, 121 Va. 812, 93 S. E. 652, 659. As was said in that case, whenever the indictment is comprehensive enough to embrace the offense charged but not specific enough to give the information to which the defendant is entitled, a bill of particulars should be called for and that is this case. The defendant is charged with being one of a “mob” and in that capacity with feloniously assaulting Neal. We need not concern ourselves with varying definitions of a “mob.” That is set out with certainty in the Act of 1928, wherein it is declared in its first section “that a collection of people assembled for the purpose and with the intention of committing an assault and/or battery upon any person and without authority of law, shall be deemed a 'mob’ for the purpose of this act.” Section 3 then goes on to provide: “Any and every person composing a 'mob,’ which shall commit an assault and/or battery upon any person without authority of law, shall be guilty of a felony, and upon conviction shall be confined in the penitentiary for not less than one year nor more than ten years.” An elaboration in the indictment of these express statutory provisions would be to darken counsel. They are too plain for argument and could not possibly have been misunderstood. The accused will be presumed to have known of them and of course this court must take cognizance of general State statutes. Moreover, the indictment upon its face charges a felony and so primarily was not an indictment — 925 — for a simple assault, while rioters, under said Code section 4532, are guilty only of a misdemeanor where an assault is made. It is true that in Mackaboy et al. v. Commonwealth, 2 Va. Cas. (4 Va.) 268, the court said that it was not sufficient to merely charge one with being a “rioter” without also stating facts which in law constitute a riot, but there is this vital difference between that case and the one in judgment: The statute itself has written into it just what a mob is. In the one case it would be necessary to descend to particulars, to state who is a “rioter;” in the other that necessity is supplied by the statute which defines a “mob” in the act which creates the offense. Under our racial integrity laws it is a crime for a white man to marry a negro woman and an indictment which charged such an act would be sufficient. It would not be necessary to go further and state who, in contemplation of law, are colored persons. There also the definition of a colored person is supplied by statute. Acts 1930, page 96, chapter 85. The claim that no crime is charged, or that one is charged in terms too vague to be intelligible, is without merit. Further elaboration is unnecessary. We think it perfectly plain that the indictment deprives the accused of no constitutional right and is amply sufficient. Objection is also made to the admissibility in evidence of statements made by members of the mob at the time of the whipping to the effect that Neal had run his wife away from home and put her in a Catholic institution in Norfolk. All that was then said and done was part of the res gestae and competent. Wharton on Evidence, section 258; R. Co. v. Gordon, 21 How. St. Tr. 542. Moreover, the statute made it necessary to prove the intent with which the mob had gathered and this evidence of its purpose is cogent and convincing. Since these charges had been — 926 — made, it was but fair to Neal that he should have been permitted to deny them. Objection is also made to the rejection of instruction “Y” which reads as follows: “The court instructs the jury that if they believe from the evidence that the accused took no part in assembling the mob which assaulted Neal, and that in going with the crowd to Neal’s and doing what he did there, he was moved by his friendly relations with Neal and his desire to serve him as far as he could, they should find him not guilty.” This the court rejected because it was of opinion that the matter there dealt with had been covered by instructions A-l and B-l already given. They read as follows: “The court instructs the jury that, in order to find the accused guilty as charged in the indictment, they must believe beyond any reasonable doubt, (1) that the accused acted in conjunction with others in assembling a collection of people or joined such an assembly, he, the said J. L. Hagood, intending that it should commit an assault and battery upon Milburn T. Neal, and (2) that he, J. L. Hagood, did so with the intention of having such assemblage, or members thereof, commit such an assault and battery upon the said Neal. The burden of proving such facts is upon the Commonwealth, and unless said facts are proved beyond any reasonable doubt, the jury should find the accused not guilty. “The court instructs the jury that if they believe from the evidence that the accused took no part in the forming of the mob which committed an assault and battery upon Neal, and did not join them with the intention of participating in any way in making an assault upon the said Neal, or that the accused had no intention of aiding, abetting, or encouraging the committing of such an assault and battery upon the said Neal, and actually took no part in said assault and battery, they should find the accused not guilty.” — 927 — The reasons assigned by the trial judge for his refusing this rejected instruction are amply sufficient. It should have been rejected for another reason. Hagood, by his own admission, went with this mob knowing its purpose. It was he who called Neal from his home and bed and delivered him to it. He went with them to the place of whipping and stood by without protest until it had reached a point at which it had become brutal. Finally it is said that “the court erred in. refusing to grant the motion for a new trial on the ground that the accused was not present when the court considered and passed upon the instructions to the jury.” Of course a person tried for a felony must be personally present during the trial. The Code so provides. Section 4894. Noell v. Commonwealth, 135 Va. 600, 115 S. E. 679, 30 A. L. R. 1345. What actually occurred is set out in this certificate of the trial judge: “It is further certified, as an incident of the trial, that on October 24, 1930, at about noon, the court took a recess for the purpose of considering the instructions to be given, and for the purpose of letting all parties concerned get lunch, and the judge and counsel went to the offices of Irby Turnbull, of counsel for the accused, for the purpose of considering the instructions. There, the instructions were argued at length and passed upon by the court, and the court gave and refused certain instructions hereinbefore set out, and counsel for the accused thereupon dictated their exceptions to certain instructions given and exceptions to the refusal of the court to give others to Mr. Phlegar, the court stenographer taking the evidence. All of which, the argument of counsel on the instructions, the action of the court in giving and refusing instructions, the notations by the court on the instructions stating that a given instruction had been granted or refused, the exceptions of — 928 — counsel for the accused, was done in the absence of the accused, and without any objection from counsel for the accused to the absence of the accused, and without the attention of the court being called to his absence.” The consideration of instructions in chambers is well-nigh the uniform practice in this State, and is entirely unobjectionable. When this is dpne the judge usually indicates to counsel what he expects to do, all of this in the absence of the accused. He has no more constitutional right to be present then than he would have the right to be present at the judge’s home should he continue the investigation and consideration of this matter there. Instructions are finally given and rejected by the court and of course he must be present at every stage of his trial. We need not concern ourselves with instructions given. The record affirmatively shows that they were given in court and in the presence of the accused. When we come to the rejected instructions, it appears that when they were tendered and considered by the judge the court was in “recess,” and'so far as the record shows, technically speaking, they were neither tendered to nor refused by the court. If they were never tendered to the judge in court, then nothing that he did with them out of court could be error. Before error can be predicated upon the conduct of the judge, it must appear that the rejected instructions were requested by counsel of him, sitting as a court. If we assume that this was done, we must also assume that they were rejected by him sitting as a court. The fact that the instructions were presented by counsel to the judge in chambers and considered by him there, and that he then indicated what he expected to do, did not make an act of the court. If it be said that this is a narrow construction, it is to be remembered that the claim itself now made, in the circumstances stated, does not appeal to one as having sub — 929 — stantive justice back of it. The error, if there be error, was invited, and “they that take the sword shall perish with the sword.” The instructions are in the record and could have gotten there in two possible ways. They could have been given to the clerk by the judge out of court, or they could have been given to him by the judge in court. If we are to indulge in the first presumption, then we are to presume error, and this we can never do. . “The presumption in favor of the regularity of the proceedings of courts extends'to every step and part thereof, and the burden is on him who alleges irregularity to show affirmatively by the record that the irregularity exists. In all cases of doubt there prevails the maxim ‘omnia praesumuntur recte ada fuisse.’ ” Dove v. Commonwealth, 82 Va. 301; Smith v. Grosjean, 1 Pat. & H. 109; Gilligan’s Case, 99 Va. 816, 37 S. E. 962; Anderson’s Case, 100 Va. 860, 42 S. E. 865; Litton’s Case, 101 Va. 833, 44 S. E. 923; White v. Reed, 146 Va. 246, 135 S. E. 809. Since the instructions are in the record, the presumption is that they were put there by the court in due and orderly procedure. If we are to indulge in guesswork, the chances are that they were handed to the clerk at the time when the instructions approved were given to the jury. .This is the general practice. That instructions tendered on behalf of the accused and rejected are not stressed in the presence of the jury is due to consideration for him. Of course, as we have seen, he must be present when final action is taken; and, as we have also seen, it affirmatively appears from the record that he was present during every moment of his trial. The situation here is not unlike that in Palmer v. Commonwealth, 143 Va. 592, 130 S. E. 398. For reasons stated, we find no error in the record. The judgment appealed from is affirmed.- Affirmed.