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In Johnson v. Commonwealth, 217 Va. 682, 232 S.E.2d 741 (1977), decided after trial of the present case, we considered the effect of an amendment to Code Sec. 8-211.1 adopted by the General Assembly effective June 1, 1975. Acts 1975, c. 652. There we held the amended statute gave the accused an absolute right to have all witnesses excluded from the courtroom during his trial.
Summary of this case from Martin v. CommonwealthOpinion
43481 Record No. 760186.
March 4, 1977
Present, All the Justices.
(1) Pleading and Practice — Exclusion of Witnesses.
(2) Statutory Construction — Two Statutes at Same Session.
1. Under amended statute, upon motion of any party, trial court shall exclude every witness during the trial of any case.
2. Court cannot assume that General Assembly intended to enact two contradictory statutes at same session of legislature. Rather, two statutes were intended to serve different functions.
Error to a judgment of the Circuit Court of the City of Richmond, Division I. Hon. J. Randolph Tucker, Jr., judge presiding.
Reversed and remanded.
Robert P. Geary (Reid A. Simmons, on brief), for plaintiff in error.
Patrick A. O'Hare, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
Ralph Randolph Johnson was found guilty by a jury of robbery committed August 4, 1975 and, by final order entered October 21, 1975, was sentenced to confinement in the penitentiary for five years. After the jury had been sworn, Johnson moved to exclude all witnesses. The trial court excluded all witnesses except the investigating officer. We granted Johnson a grit of error to consider the effect of an amendment to Code Sec. 8-211.1 adopted by the General Assembly effective June 1, 1975. Acts 1975, c. 652.
Prior to amendment, the statute read in part:
"In the trial of every case, civil or criminal, the court . . . may upon its own motion and shall upon the motion of any party, require the exclusion of every witness whose presence is not necessary to the proceedings. . . ." (Italics supplied).
The 1975 amendment deleted the italicized language. Addressing that language in Jefferson v. Commonwealth, 212 Va. 255, 183 S.E.2d 734 (1971), we declined to speculate upon legislative intent and held that the statute did not vest a defendant with an absolute right to exclusion of all witnesses. In accord, we ruled in Yorke v. Commonwealth, 212 Va. 776, 188 S.E.2d 77 (1972), Evans v. Commonwealth, 215 Va. 609, 212 S.E.2d 268 (1975), and Hensley v. City of Norfolk, 216 Va. 369, 218 S.E.2d 735 (1975), that exclusion of witnesses was a matter within the sound discretion of the trial court, in all these cases, the trial date antedated the effective date of the 1975 amendment. Here, the amendment was in effect on the day of trial.
Johnson argues that, while a defendant's right to exclusion under the old statute was qualified, i.e., it extended only to those witnesses whose presence at trial was not necessary, the amendment removed that qualification and made a defendant's right absolute. We agree. In its amended form, Code Sec. 8-211.1 permits of no rational construction but that "upon the motion of any party" a trial court "shall" exclude "every witness" during the trial of "every case, civil or criminal".
The Commonwealth contends that this construction is defeated by the language of Code Sec. 19.2-266 (Repl. Vol. 1975) which reads in part:
"In the trial of all criminal cases . . . the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial. . . ."
Although the words "persons" may include witnesses, we read that statute (previously, Code Sec. 19.1-246 (Cum. Supp. 1975)) to apply primarily to spectators. Legislative history supports our view. Code Sec. 19.2-266 and the 1975 amendment to Code Sec. 8-211.1 were adopted at the same session of the legislature. We cannot assume that the General Assembly intended to enact two contradictory statutes. Rather, we conclude that it intended the two statutes to serve different functions in furtherance of a common goal, viz., a fair trial for all litigants.
The judgment will be reversed and the case will be remanded for a new trial.
Reversed and remanded.