
    *Roussell v. The Commonwealth.
    January Term, 1877,
    Richmond.
    Criminal Law — Motion for Continuance. —R is indicted for larceny in the corporation court of Norfolk in October, 1875. The clerk, at her instance twice sends a subpoena for C as a witness, to the sheriff of Surry, where C lives, which are returned, “came too late to serve.” Lie sends another, which is not returned. In June the case is continued for the commonwealth. The counsel of R relying on the practice of other clerks, to issue subpoenas for a witness once directed to be summoned, does not direct the issue of one to the October term; and one is not issued, and C is not present when on the 2nd of October the case is called at that term. The court continues the case until the 9th, and the clerk by the first mail (the next day) sends a subpoena for C to the sheriff of Surry; but on the 9th the writ is not returned nor is the witness present. Though the counsel for R states in writing that he has conversed with C, and that he will prove material facts, which he states, in favor of R, and R swears that C is a material witness for her, and she cannot go safely to trial without him, and that she can prove by him the facts stated by the counsel, the court held justified in refusing a continuance of the cause.
    At the October term 1875 of the corporation court of Norfolk, Amedee Roussell and Amelia Roussell were jointly indicted, for, on the 7th of (September, 1875, stealing a large quantity of jewelry, a gold watch and silver fork, the property of Emile Goulard. The cases were continued until the October term 1876, the parties being admitted to bail. When the case was called at the October term 1876, the attorney for the commonwealth elected to try them separately, and to take up first the case of Amelia Roussell. She, by her counsel, then moved the court for a continuance of *the cause, upon the ground of the absence of George T. Clarke, a material witness for her, who lived in the county of Surrey. The counsel stated in writing that he had conversed with Clarke, and he expected to prove by him that Goulard, the prosecutor in the case, and the main witness, was unworthy of belief, and that disposition had been made of part, if not the whole, of the property alleged by Goulard to have been stolen by the prisoners prior to the time at which the prisoners were charged with the theft. And the prisoner made oath to the materiality of the witness, and that she could not go safely to trial without him. That she expected to prove by him that Goulard was unworthy of belief, and that some, if not all, of the articles alleged to have been stolen by her were disposed of by Goulard, in Surry county, before the day on which it is alleged she stole them.
    It appeared that in September 1875, before the indictment was found, the prisoner had caused a subpoena to be issued by the clerk of the corporation court for Clarke, addressed to the sheriff of Surry county, returnable October 7th, 1875; which was returned by sheriff, “came to hand 11th day of October 1875, too late to be executed.” That on the 19th of October the counsel caused to be issued two subpoenas for Clark, returnable to the November term; and one of these he mailed to the sheriff of Surrey, and the other to Clarke; but no return was made of said writs. That on the 4th of November the court caused a rule to be issued against Clarke, directed to the sheriff of Surry county, returnable on the 10th of November, on which there was a return of — -“came to hand November 15th, too late to execute.” That Clarke being a member of the legislature, the case was continued to the April term of the court; but the clerk by mistake issued a subpoena ^returnable to March term, which was returned executed. Nothing was done at the April term in the case. At the June term Clarke was present; but the case was continued for the commonwealth. That prisoner’s counsel relying upon what was the habit of clerks in other courts to regularly issue subpoenas in all cases when once an order had been given, to every term of the court in which the case was docketed for trial, without further directions, did not give any additional memorandum to the clerk directing said witness. Clark, to be subpoenaed. That on the 2d of October 1876, upon the calling of the case for trial; Clarke being absent._ not being summoned, and no directions given to the clerk since the 'first calling of the cause, on motion the court continued the case in order to get said witness present, to the 9th day of October 1876. That then and there the prisoner through her counsel caused another subpoena to be issued for said witness, Clarke, returnable to the 9th of October; and that the clerk sent the said subpoena by the first mail. fthe' next morning), directed to the sheriff of Surry county; but said subpoena was not returned in time for the trial, nor did the witness appear. The court overruled the motion for a continuance of the case; and the prisoner excepted.
    On the trial the jury found the prisoner guilty, and fixed the term of her imprisonment in the penitentiary at five years; and the court sentenced her accordingly. And the prisoner thereupon applied to a judge of this court for a writ of error; which was awarded.
    
      Godwin & Crocker, and T. W. Pierce, for the prisoner.
    
      The Attorney General, for the commonwealth.
    
      
      Motion for Continuance — Discretion— Review.—In Norfolk R. Co. v. Shott, 92 Va. 45, the court citing the principal ca.se says: “The court in which a trial takes place is in a position to determine, better than any one else can do, the sufficiency of ground relied on for a continuance; hence it is that an appellate court does not interfere, unless the judgment of the court below, on such a motion, is plainly erroneous ” The following cases also cite the principal case approvingly: Welch v. Com., 90 Va. 321; Phillips v. Com., 90 Va. 403; Com. v. Mister, 79 Va. 5; Keesee v. Border Grange Bank, 77 Va. 132; Pairo v. Bethell, 75 Va. 828; The Bland and Giles County Judge Case, 33 Gratt. 443 and note, distinguished in Walton v. Com., 32 Gratt. 855.
    
   Burks, J.

On the 11th day of October 1876 Amelia *Roussell (the x plaintiff in error) was tried in the corporation court of the city of Norfolk, on an indictment for grand larceny. The jury found her guilty, fixed the term of her imprisonment in the penitentiary at five years; and she was sentenced by the court accordingly.

When the case was called for trial, she by her counsel moved the court for a continuance of the cause, on the ground of the absence of a witness. The court overruled the motion, and she excepted.

_ The single question presented for the consideration of this court upon the writ of error is, whether the court below erred in overruling the prisoner’s motion for a continuance.

In support of her motion, she proved by her counsel that the witness on account of whose absence the motion was made, was George T. Clarke, of the county of Surry, Virginia; that the counsel had conversed with the witness on the subject of his testimony; that it was material to the defence of the prisoner, and that she expected to prove by said Clarke that M. Goulard, the prosecutor and main witness for the commonwealth (whose goods she was charged in the indictment with having stolen), was unworthy of belief; and that Goulard had disposed of a part, if not the whole of the goods charged to have been stolen, prior to the time at which it was alleged that the prisoner had committed the larceny thereof. In addition to this statement -of her counsel, she made an affidavit to the same effect, and further, that she could not safely go to trial in the absence of the witness.

It appears by the record that she was indicted in the corporation court of Norfolk, on the 4th day of October 1875. So that twelve months intervened between the finding of the indictment and her trial and conviction *thereunder. By the direction of her counsel, a subpoena for the witness Clarke was issued on the 30th day of September, four days before she was indicted, addressed to the sheriff of Surry, and returnable on the 7th day of October following. It was not executed; the sheriff making return that it came to hand “too late to execute.” The case was continued to the November-term following. Previous to that term, to wit, on the 19th of October, the prisoner’s counsel caused two sub pamas to be issued for Clarke, one of which was mailed to the sheriff of Surry, and the other was mailed to Clarke himself, both returnable to the November term of the court; but no return was ever made of either.

At the November term, to wit, on the 4th day of November, a rule was made against Clarke, returnable to the 10th day of the same month; to which rule the sheriff of Surry made return, that it “came to hand 15th November, too late to execute.” -

The court learning that Clarke was a member of the Virginia legislature, continued the case to the April term following (1876). The clerk issued a subpoena for Clarke, hut by mistake made it returnable to March instead of to the April term. The subpoena was executed, but nothing was done in the case at the April term. At the June term, it is stated in the bill of exceptions, but no copy of any order of the court at that term appears in the record, that Clarke was present and that the case was continued “on the motion of the commonwealth, and not upon the motion of the prisoner.” At the July term the case was continued for the commonwealth, on account of “the illness of an important witness for the commonwealth.”

Whether the witness, Clarke, was in attendance at the July term does not appear. The case was continued *at that term to the October term following (1876). When the case was called for trial at the Octber term, to wit, on the 2nd day of October, the witness, Clarke, was not in attendance, and it appeared that he had not been summoned to attend, that no process had issued requiring his attendance, and none had been ordered to be issued; “the prisoner's counsel relying,” as stated in the bill of exceptions, “upon what was the habit of the clerks of other courts to regularly issue subpoenas in all cases, when once an order had been given, to every term of the court in which the case was docketed, without further directions.” The bill then proceeds as follows: “that on the 2nd day of October, 1876, upon the calling of the case for trial, the said witness Clarke being absent, not having been summoned, and no direction having been given to the clerk since the first calling of the case, on motion, the court continued the case, in order to get said witness present, to the 9th day of October 1876. That then and there the prisoner, through her counsel, caused another subpoena to be issued for said witness. Clarke, returnable to the 9th day of October 1876; that the clerk of said court did issue said subpoena, and sent it by the first mail (the next morning) directed to the sheriff of Surry county, that said subpoena was not returned in time for the trial, nor did the witness appear.”

“A motion for a continuance,” says Judge MoncurE, delivering the opinion of the court in Hewitt v. Commonwealth, 17 Gratt. 627, 629, “is addressed to the sound discretion of the court, under all the circumstances of the case; and though an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action is plainly erroneous.”

*Was the action of the corporations court in refusing the continuance in this case under all the circumstances “plainly erroneous?” I cannot think so. Although the case _ was pending in court for twelve months, it does not appear that a subpoena was ever served upon the witness Clarke but once, and then the subpoena was returnable to the wrong term of the court; nor does it appear that he was ever in attendance except at one term, (June), and it does not appear that he had been summoned to that term. Surely, under the circumstances disclosed by the record, after the case had been continued from the July term to the October term following, it behooved the prisoner to use diligence in preparing for trial at that term. _ And yet no summons was issued for the witness whose testimony was deemed of such great importance to the prisoner on the trial, and no steps whatever were taken to secure his attendance. The only excuse offered for this omission, was, that the prisoner’s counsel relied upon the habit of the clerks of other courts, when a subpoena for a witness had once been ordered in a case, to continue to issue it afterwards from term to term until trial, without further directions. This is not a valid excuse. After the delay, which had occurred, special efforts should have been made to secure the attendance of this witness. Instead of that, no effort was made at all. It cannot be said that she was prevented from making such efforts by confinement in jail: for she was at large on bail the greater part of the time after she was indicted, and during the whole of the time from the July term till the October term following at which she was tried. When the case, therefore, was called for trial on the 2nd day of October, 1876, it would not have been error if the court had proceeded at once with the trial in the absence of the witness. *But the court, out of mere-indulgence, doubtless, to the prisoner,, and to enable her still to secure the attendance of Clarke at the trial, postponed it till another day of the term, the 9th day of October. After this had been done, it was not the exercise of due diligence on the part of the prisoner merely to cause a subpoena for the witness to be sent through the mail into another county to a sheriff who on two previous occasions in the same case had' made return on process “not time to execute,” and at other times had not returned the process at all. The prisoner could not have known that the subpoena thus sent would have reached the sheriff in time to be executed by him, if it reached him at all. Under the circumstances. some other more certain mode should have been adopted to have the subpoena served, or at least placed in due time in the sheriff’s hands for service.

The affidavit of the prisoner, that Clarke was a material^ witness,_ and that she expected to prove by him certain facts, should, under-the circumstances, have further stated, if true, that she could not prove the same facts by any other witness present at the trial.

The counsel for the prisoner, in his printed note of argument, cites in support of his assignment of error the case of Gwatkin v. Commonwealth, 10 Leigh 687. That case was essentially different from the one we are now considering. There it was shown that the absent witness had been duly summoned, that his testimony was material, that facts material to the defence could be proved by him which could not be proved by any other witness, and that the witness was probably prevented from attending by his sickness. The certificate of the judge in the bill of exceptions in this case that the evidence on the trial (which was made a part of the record) was .of “a circumstantial nature and *conflicting,” can have no controlling influence in determining the propriety of the action of the court in refusing to grant the continuance.

I am of opinion that there is no error in the judgment of the corporation court of the city of Norfolk, and that the said judgment should be affirmed.

Moncure, P., and Christian and Staples, Js., concurred in the opinion of Burks, J.

Anderson, J., dissented.

Judgment affirmed.  