42687 Record No. 7840.
April 24, 1972
Present, All the Justices.
(1) Indecent Exposure — Sufficiency of Evidence.
(2) Criminal Procedure — Exclusion of Witnesses.
1. On review after conviction, evidence viewed in light most favorable to Commonwealth is sufficient to sustain verdict.
2. Trial court granted accused's motion to exclude witnesses. Commonwealth then designated two complaining witnesses as "Commonwealth's witnesses at counsel table". Accused then moved to exclude one such witness. While better practice, which is commended to trial courts, is to grant such a motion, no abuse of trial court's discretion or prejudice to accused has been shown.
Error to a judgment of the Circuit Court of Henrico County. Hon. Edmund W. Hening, Jr., judge presiding.
William G. Beninghove, for plaintiff in error.
Robert E. Shepherd, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
John Lester Yorke, Jr. (Yorke or defendant) was found guilty of a violation of Code Sec. 18.1-236 (indecent exposure) by a jury on conflicting evidence. The trial court sentenced him in accordance with the jury's verdict.
When we view the evidence, as we must, in the light most favorable to the Commonwealth, it is sufficient to sustain the conviction.
After his arraignment Yorke made a motion that the witnesses be excluded. The trial court granted the motion. The Commonwealth's attorney then designated the two complaining witnesses "as the Commonwealth's witnesses at counsel table."
Yorke then moved that one of the complaining witnesses be excluded. The trial court denied this motion and Yorke excepted.
The better practice, and the one which we commend to our trial courts, is to grant such a motion when it is seasonably made in good faith in the absence of some showing of a good reason for its denial.
But neither the accused nor the Commonwealth, as a matter of right, is entitled to have the witnesses separated as this is a matter within the sound discretion of the court, subject to review and reversal upon a showing of abuse of discretion or prejudice resulting therefrom. Code Sec. 19.1-246; Near v. Commonwealth, 202 Va. 20, 30, 116 S.E.2d 85, 92 (1960); Huffman v. Commonwealth, 185 Va. 524, 531, 39 S.E.2d 291, 295 (1946). See Jefferson v. Commonwealth, 212 Va. 255, 183 S.E.2d 734 (1971).
While the trial court did not follow the better practice here, we fail to find an abuse of discretion and there is no showing of prejudice to the defendant in the record.