Petition for Writ of Certiorari — Dunnaville v. Virginia

IN THE

Supreme Court of the United States

HERBERT M. DUNNAVILLE, JR.

Petitioner

v.

COMMONWEALTH OF VIRGINIA

Respondent

PETITION FOR WRIT OF CERTIORARI

JOHN H. KENNETT, JR.

133 Kirk Avenue, Southwest

Roanoke, Virginia 24011

Counsel for Petitioner

ROANOKE PRINTING CO., INC., ROANOKE, VA.

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SUBJECT INDEX

I. Reference To Reports of Opinions ............. 1

II. Statement of Grounds to Invoke Jurisdiction .... 2

EEE. Cnsstions Peseented ...... 2.20 0sssceseciocoesis 3

IV. Constitutional and Standing Provisions

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Wes I Gocco S 5 tiakvsveereeeten ecurean 15

es Oe ID ov devccncisenecesabecess 16

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TABLE OF AUTHORITIES

Page

Constitution of the United States

Amendment V ......---ceeecccsseeseeeeees 3

Amendment XIV ........---seeeereereeeeee a2

United States Code

28 U. S.C. § 1257(3) 2... eee e renee cece eee 2

Code of Virginia of 1950

§ 1B1-16 oo. cece cece eee e ence ence cence 4

G 1B.1-38 ccc ceceeee ce cceecesceeccers 3, 4

Ashe v. Swenson

397 U. S. 436 (1970) ..... cece reece renee ees 7

Benton v. Maryland

395 U. S. 784 (1969) ....- eee cece ee ee eens 7

Crosswhite v. Barnes

139 Va. 471, 124 S. E. 242 (1920) .......---- 8

Ingram v. Commonwealth

192 Va. 794, 66 S. E. 2d 846 ‘te ) Bee 8

People v. Chessman

38 Cal. 2d 166, 238 P. 2d 1001 (1951) .....- 13

People v. Daniels

71 Cal. 2d 1119, 459 P. 2d 225 (1969) ... 12, 13, 13

People v. Florio

301 N. Y. 46, 92 N. E. 2d 881 (1950) ......-. 11

ii

TABLE OF AUTHORITIES (continued)

People v. Knowles

35 Cal 2d 175, 217 P. 2d 1 (1950) .......

People v. Levy

15 N. Y. 2d 159, 204 N. E. 2d 842 (1965) ..

People v. Lombardi

20 N. Y. 2d 666, 229 N. E. 2d 206 (1967) ...

People v. Mutch

4 Cal. 3d 389, 482 P. 2d 633 (1971) .......

People v. Norman

93 Ca. Rptr. 749, 482 P. 2d 661 (1971) ...

State v. Jacobs

93 Ariz. 336, 380 P. 2d 998 (1963) .......

Waller v. Florida

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IN THE

Supreme Court of the United States

HERBERT M. DUNNAVILLE, JR.

Petitioner

COMMONWEALTH OF VIRGINIA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SU-

PREME COURT OF THE UNITED STATES:

The Petitioner, Herbert M. Dunnaville, Jr., petitions

for a writ of certiorari to review a judgment of the Su-

preme Court of Virginia as follows:

I. REFERENCE TO REPORTS OF OPINIONS

A writ of error was denied by the Supreme Court

of Virginia to the judgment of conviction of a trial court;

and consequently no opinion was rendered or reported

in an official or unofficial report.

1

I

Il. STATEMENT OF GROUNDS TO INVOKE

JURISDICTION

Jurisdiction is invoked on the grounds that the

Petitioner was convicted by a State court of a crime for

which he had already been placed in jeopardy in viola-

tion of Section 1 of Amendment XIV of the Constitu-

tion of the United States of America; and

1. The judgment sought to be reviewed was made

and entered by the Supreme Court of Virginia on Sep-

tember 28, 1973 denying a writ of error to a judgment

of conviction by the Hustings Court of the City of

Roanoke on January 11, 1973 (but the name of said

trial court was changed to the Circuit Court of the

City of Roanoke on July 1, 1973 after the conviction) ;

and

2. Anorder of the Supreme Court of Virginia was

entered on October 16, 1973 staying its judgment on

September 28, 1973 denying the writ of error as afore-

said in order to permit the Petitioner to have reason-

able time and opportunity to apply to this Court for a

writ of certiorari to review the aforesaid final judg-

ment of that court; the stay is effective until December

27, 1973, and, if by that time the case has been docketed

in this Court, thereafter until final determination by

this Court; and there has been no application for a re-

hearing to the Supreme Court of Virginia and its judg-

ment on September 28, 1973 is a final adjudication by the

highest court of the Commonwealth of Virginia con-

cerning the subject matter in controversy; and

3. The statutory provision believed to confer juris-

diction on this Court to review the final judgment in

question by a writ of certiarari is 28 U.S. C. § 1257(3).

PAPI RESELL OUP ENB TE RELL ER RE ANTRAL TL PGES TOL OTN EVIE ELSIE

III. QUESTIONS PRESENTED

The sole question presented for review by this petition

for a writ of certiorari is whether the incidental act of

detention or transportation associated with rape is a

second criminal offense of abduction for which a convict-

ed rapist may also be charged without being placed in

jeopardy twice for the same offense.

IV. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provision which this case involves

is the second sentence of Amendment XIV, Section 1, of

the Constitution of the United States and is as follows:

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

By judicial decision, the aforesaid due process clause of

the Fourteenth Amendment makes the double jeopardy

clause of Amendment V of the Constitution of the United

States applicable to the State criminal proceedings, and

is as follows:

“nor shall any person be subject for the same of-

— or to be put twice in jeopardy of life and

lim...”

The double jeopardy hereby involved is a conviction of

abduction under Va. Code § 18.1-38 which is as follows:

Ree Se ome) erg rer YET TEE AER IIE

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EM Sa WS Ry TAY:

“Abduction with the intent to extort money, or pe-

cuniary benefit, abduction of any person with intent

to defile such person, and abduction of any female

under sixteen years of age for the purpose of con-

cubinage or prostitution shall be punished with

death, or by confinement in the penitentiary for life

or any term not less than three years.”

V. STATEMENT OF THE CASE

The following is a concise statement of the case

confined to the question presented. Pagz references to the

record prepared by the clerk of the trial court are pre-

ceded by the letter “R” and to the transcript of the testi-

mony and incidents of the trial by the letter “T”. The

Petitioner is referred to as ““Dunnaville” and the Re-

spondent as “Virginia”.

Dunnaville was indicted by a grand jury of the

Hustings Court of the City of Roanoke on October 2,

1972 charging him by Count | with attempted rape as

defined by Va. Code § 18.1-16 and by Count 2 with

abduction as defined by Va. Code § 18.1-38 (R-1). He

was jointly tried on both counts by a petit jury of said

trial court on December 14, 1972 and the jury returned

a verdict of not guilty of attempted rape as charged by

Count | of the indictment but guilty of assault as a lesser

included offense with punishment by one month in jail;

and guilty of abduction as charged by Count 2 of the

indictment with punishment by confinement in the peni-

tentiary for five years (R. 6-7; R. 8; R. 9; and R. 10).

Throughout the trial, Dunnaville excepted to the treat-

ing of the detention or transportation of the prosecutrix

essential for the alleged attempted rape as a second of-

fense of abduction and his objections included the grant-

4

a RENEE URES 10 SEF CSN SPSS EAGER RI ST TE PENS GEILE ALLIES ETE IGS (TR

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ing of instructions or charges to the jury which did not

make such distinction under the facts (T. 149-150; T.

151; and T. 152-153). After the verdict but before sent-

encing, Dunnaville moved the verdict under Count 2

be set aside as contrary to the law and evidence because

there was no evidence of abduction and the verdict un-

der Count | precluded a second conviction under Count

2 of the indictment (T. 157); and the trial court set

aside the verdict under Count | of the indictment (T.

157-158) ; but the order erroneously recites Dunnaville’s

motion to set aside the verdict was directed to Count 1 of

the indictment which was actually set aside (R. 7). The

sentence was postponed until January 11, 1973 when

Dunnaville was sentenced to five years in the penitentiary

in accordance with the jury verdict convicting him of

abduction as charged in Count 2 of the indictment (T.

162) ; and a formal judgment of conviction was rendered

on the same day by the trial court (R. 25-26). Dunnaville

petitioned to the Supreme Court of Virginia for a writ

of error to the judgment of conviction which was denied

by the order of that court on September 28, 1973. (See

appendix to this petition.)

While Dunnaville denies he was the assailant, he

is hereinafter referred to as such because of the jury’s

verdict convicting him under both counts of the indict-

ment.

Shortly after midnight or at approximately 12:30

or 1:00 A. M. on August 31, 1972 (T. 8), the prosecutrix,

Linda Sue Alexander Fields, was returning to her dwell-

ing in an apartment complex designated as 2251 Moun-

tain View Terrace, in the City of Roanoke, Virginia

(T. 14). As she approached the steps leading to the

door of her apartment building, a young Negro male

5

|

(later identified as Dunnaville) walked from behind

her, put his arm around her neck, placed a cold metal

object to the back of her neck and stated “Let’s go” (T.

9). After they went into her apartment, he closed the

door and this was the first time she saw that the cold

metal object was a pistol (T. 18; fifth answer and T. 9;

last answer). During the entire course of events, he never

threatened her with the pistol beyond having it in his

hand (T. 17). They went through the apartment and then

Dunnaville had the prosecutrix undress. She cooperated

because she was afraid of him and he had a gun in his

hand (T. 11; fifth answer and T. 19; second answer).

He subsequently lowered his pants and rubbed his penis

against her body (T. 12).

Then Dunnaville began to expound on the fact that

he was human and not black and that she was human

(T. 12) and he was not going to do anything to her but

leave (T..19-20). The only statement made by Dunna-

ville as to why he was there was that “he was going to

ball her” (T. 20). The prosecutrix repudiated her state-

ment that Dunnaville said “I came here to ball you but

since you are having your period, I’m not going to touch

you” (T. 12; T. 19).

The Dunnaville left. The entire episode lasted about

twenty minutes (T. 13).

VI. ARGUMENT

A writ of certiorari should be granted because the

appended judgment of the Supreme Court of Virginia

decides a federal question of substance in a way incon-

sistent with the decisions of courts of last resort of the

6

~ several states and should be clarified by a decision from

this Court.

The Fifth Amendment guarantee against double

jeopardy is enforceable against the States through the

Fourteenth Amendment . Benton v. Maryland, 395 U. S.

784 (1969). Consequently a conviction for destruction

of city property in violation of the city’s ordinances has

been held to prohibit a subsequent criminal charge of

grand larceny of same city property, Waller v. Florida,

397 U. S. 387 (1970) ; and the test is whether the accused

has been “placed in jeopardy” and not whether he has

been actually convicted of a criminal offense involving

the same act. Ashe v. Swenson, 397 U. S. 436 (1970).

Here Dunnaville was charged with attempted rape

under Count 1 of the indictment and abduction under

Count 2 of the indictment. Because Dunnaville had not

been previously charged, tried, convicted or acquitted

of either charge prior to the indictment and hecause the

facts of the abduction could have been som, :hing be-

sides the acts of attempted rape, Dunnaville was not

necessarily informed by the indictment that the abduc-

tion was the detention or transportation essential to the

attempted rape to which he could file a plea of double

jeopardy. (At all times, Dunnaville denied he was the

assailant with personal knowledge of the facts.) While

he could not prior to the trial have requested Virginia

elect as to which count of the indictment she would seek

a conviction, he immediately raised the question when

the Commonwealth rested her case (T. 20(a)). At that

point, he moved the trial court to strike the evidence

as to Count 2 of the indictment because of double jeo-

pardy and renewed the motion at the conclusion of all

the evidence (T. 149-150). Furthermore, since he was

being simultaneously placed twice in jeopardy, he ob-

jected to Jury Instruction no. | because it failed to tell

the jury they could not find Dunnaville guilty under both

counts of the indictment (T. 151).

Assuming for the purpose of argument the evidence

of abduction was beyond that incidental to the attempted

rape, Dunnaville also objected to the granting of Jury

Instruction no. 3 submitted on behalf of Virginia because

it did not require an element of the offense of abduction

beyond the assault or assault with intent to rape as charg-

ed by Count | of the indictment (T. 152-153). More

particularly, this instruction told the jury they might

convict under Count 2 of the indictment if Dunnaville

“seized, took, transported, detained, or secreted” the

prosecutrix with the intent to defile her (R. 15). Since

the conjunction “or” was used, the jury could have con-

cluded that if Dunnaville simply detained the prosecutrix

in her apartment with the intent to rape her, he was

guilty of abduction. Yet under Count 1 of the indict-

ment, the jury concluded Dunnaville was guilty of an

assault which is defined as the unconsented forcible

touching of the prosecutrix, Crosswhite v. Barnes, 139

Va. 471 (1920); but the jury found he did not attempt

to rape her. Since forcible touching of the prosecutrix

with an intent to rape her would have been attempted

rape, Ingram v. Commonwealth, 192 Va. 794 (1951),

the jury acquitted Dunnaville of acting with an intent

to rape or defile the prosecutrix when he was touching

and detaining her.

Consequently the finding by the jury of Dunnaville

as guilty of assault as a lesser included offense of at-

tempted rape under Count | of the indictment neces-

sarily precluded a finding of Dunnaville as guilty of

8

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detaining the prosecutrix with the intent to defile her; ~

but under Jury Instruction no. 3, he could have been

convicted of doing no more than assaulting her with an

intent to defile her.

Even though the error of the trial court might have

been one of faulty charge to the jury as opposed to double

jeopardy, the point is that under the facts and instructions

as charged to the jury, Count | and Count 2 of the

indictment were simultaneous criminal charges for the

same offense. Furthermore the trial court did not elimi-

nate this error by setting aside the jury verdict of guilty

of assault as a lesser included offense under Count 1 of

the indictment because at that time, Dunnaville had al-

ready been “placed in jeopardy”. Thus for the purpose

of this review by writ of certiorari, the issue is whether

the necessary detention incidental to an assault or an as-

sault with an intent to rape (or for the purpose of argu-

ment, rape itself) can constitute a separate offense of

abduction without violating the double jeopardy clause.

While there is no Virginia decision on the precise

question of whether the retraint or asportation essential

to rape constitutes the separate crime of abduction, the

courts of last resort in other jurisdictions have considered

this point. In People v. Lombardi, 20 N. Y. 2d 666, 229

N. E. 2d 206 (1967), the defendant was convicted of

kidnapping, attempted rape and lesser assaults. He was

a pharmacist and on three separate occasions he hired

a young girl to accompany him on a business trip. Before

each trip, he gave the particular woman pills misrepre-

senting their purpose. Actually the pills made the vic-

tims unable to coordinate muscular movement. He then

made sexual advances toward each woman. These ad-

vances were the basis of the charges of attempted rape.

In each case, the woman was returned to her house by

‘ the defendant. The asportation of the three women from

Manhatten to Queens (sections of the City of New York)

aided in part by the drugs, and the physical domination

of them in a hotel room made possible by the drugs, made

the defendant's acts within the literal terms of the kidnap-

ping statute. The Court of Appeals of New York noted

that this crime was no different from drugging the wo-

men in the pharmacy and taking them into the back

room and making sexual advances which also would be

within the definition of the kidnapping statute. The court

held the kidnapping statute does not apply to acts which

are essentially the crimes of robbery, rape or assault and

which some confinement or asportation occurs as a sub-

sidiary incident.

People v. Lombardi, supra, followed the rule estab-

lished in People v. Levy, 15 N. Y. 2d 159, 204 N. E. 2d

842 (1965). In that latter case, the defendants accosted a

husband and wife who were stopping their automobile,

entered and took possession of the car with guns, and

robbed the husband and wife during a drive taking ap-

proximately twenty minutes going a distance of twenty

seven blocks. The Court of Appeals of New York held

that the incidental restraint caused by the robbery could

not be kidnapping. The automobile was a situs of the

robbery and the restrain of the husband and wife while

the car was moving was no different in relation to the

robbery than would be the tying of a victim in a bank

and moving him into another room. In essence the crime

remained robbery although some of the statutory lang-

uage of the kidnapping statute might literally apply.

Of course, robbery and kidnapping could simultaneously

occur such as where the victim of a robbery was taken

10

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as a hostage and held for a considerable time after the

robbery had been completed.

People v. Levy, supra, represents the modern trend

and expressly overruled People v. Florio, 301 N. Y. 46,

92 N. E. 2d 881 (1950). In that latter case, the defend-

dants were prosecuted under an indictment charging, in

separate counts, kidnapping, rape and assault. They en-

ticed the prosecutrix into an automobile and, against her

will, detained and confined her therein while transport-

ing her through various counties to a secluded place

where each defendant raped her. On appeal, the defen-

dants asserted they could not be guilty of kidnapping

since it was merely incidental to the rape and assault even

though the statute provided “A person who. . . takes or

detains a female unlawfully against her will, with in-

tent to compel her by force, menace or duress, . . . to be

defiled; . . . is guilty of abduction.” The Court of Ap-

peals held that the detaining and transporting the prose-

cutrix was separate from the assault and rape. However,

the court did concede:

“It is true that the detention inevitably occurring

during the immediate act of commission of such a

crime as rape or robbery would not form a basis

for a separate crime of kidnapping. That, however,

is not the case. Defendant’s inveiglement, detention

and confinement of a woman unknown to them

against her will and without authority of law, con-

stituted a separate and distinct crime of kidnapping.”

92 N. E. 2d at page 882.

Thus under present New York law, the transportation of

a woman incidental to the rape of her is not a separate

crime of kidnapping; but even under the previous law,

if the detention was no more than what was necessary

11

to commit the rape, there could not be a conviction of

both.

The same modern trend of the law exists in Californ-

ia. A recent case holds that the defendant’s act in the

course of robbery and rape in causing the victim to

move across the living room and into the bedroom of her

home was merely incidental to the robbery and rape and

did not substantially increase the risk of harm beyond

that inherent in the act of robbery and rape, and did not

constitute a separate offense of kidnapping, People v.

Norman, 93 Ca. Rptr 749, 482 V. 2d 661 (1971) ; accord:

People v. Mutch, 4 Cal. 3d 389, 482 P. 2d 633 (1971).

The landmark case in California analyzing the auth-

orities throughout the country in somewhat detail is

People v. Daniels,71 Cal. 2d 1119, 459 P. 2d 225 (1969).

There the Supreme Court of California dealt with the

precise issue here involved. There the defendants were

charged with kidnapping victims for the purpose of

robbery. Four different women had been robbed on four

different occasions. In each case, the women were not only

robbed but raped. Under count 3, a gun was placed to the

neck of the victim and she was made to move around in

her dwelling. Clearly the defendants were guilty of

seizing and detaining their victims for defiling them

and the victims suffered bodily harm. Nevertheless, the

Supreme Court of California held that the movements

which the defendants compelled their victims to per-

form inside the premises in which the defendants found

them in furtherance of the robberies and rapes were

merely incidental to the crimes of robbery and rape par-

ticularly when they did not substantially increase the

risk of harm to the victims otherwise present, and these

acts did not constitute the separate crime of kidnapping.

12

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People v. Daniels, supra, specifically reversed Peo-

ple.v. Chessman, 38 Cal. 2d 166, 238 P. 2d 1001 (1951).

In that case, the famous Caryl Chessman (noted for his

various novels written while on death row at a California

penitentiary) was convicted of seventeen felonies includ-

ing counts of robbery, rape and kidnapping. In regard

to the definition of kidnapping, the Supreme Court of

California held “It is the fact, not to distance, or forcible

removal which constitutes kidnapping in this state.”” Even

under this prior interpretation now disregarded, the court

held that where an act involving all that is required for

the crime of robbery is also the crime of kidnapping, then

to convict the defendant of both kidnapping and rob-

bery is double punishment.

This decision on double punishment followed the

decision earlier announced in People v. Knowles, 35 Cal.

2d 175, 217 P. 2d 1 (1950). There David Knowles was

convicted of armed robbery and kidnapping for the pur-

pose of robbery. The Supreme Court of California held

that whether he was sufficiently indentified as the guilty

person was for the trier facts under the evidence, but he

could not be convicted of both armed robbery and kid-

napping because it was double punishment. The court

held that to guard for fifteen or twenty minutes the vic-

tim who had been forced in a room twenty-five feet away

by gun point was a violation of the statute penalizing

one who seized, holds or detains another to commit ex-

tortion or robbery; but nevertheless reversed the kid-

napping conviction because it would be double punish-

ment.

Thus under present California law as announced

in People v. Daniels, supra, the incidental act of de-

tention or transportation associated with rape is not the

crime of kidnapping or abduction even though it literally

13

sirens cc IBA GORE: Ae POISE MELD EARL PTRM MENG

comes within the terms of the statute. Even under pre-

vious decisions holding that such detention and transpor-

tation was a separate crime of kidnapping, a defendant ~

coul not be convicted for both the rape and kidnapping.

The modern trend of present New York and Cali-

fornia law is apparently to interpret abduction statutes

as not being intended by the legislature to include the

seizure or detention essential for the purpose of commit-

ting robbery, rape or similar offenses; and the courts of

last resort in some states continue to hold to the contrary.

Eq.: State v. Jacobs 93 Ariz. 336, 380 P. 2d 998 (1963) ;

cert den 375 U. S. 46 (1963). Even so, such decisions

would not be in conflict with the previous New York and

California decisions holding that the detention inevitably

occurring during the immediate act of commission of a

rape or robbery, even though constituting the offense of

abduction, can not form the basis of a separate criminal

charge without being double jeopardy.

First Dunnaville asserts that this Court in order to

establish a uniform application of the federal double

jeopardy rule, should follow the decisions of New York

and California and hold that seizure and detention for

the purpose of committing a rape can not form the basis

of a criminal offense of abduction. Second, if the Court

rejects such argument, the Court should hold the de-

tention necessarily accompanying the immediate act of

a rape or attempted rape, even if abduction, can not form

the basis of a second charge when the accused is charg-

ed with rape or attempted rape. Under the charge to

the jury by the trial court, the act of holding a woman

while raping her would constitute separate crimes of

rape and abduction. Under the charge to the jury, Count

1 and Count 2 of the indictment charged the same of-

fense and it was double jeopardy to submit both criminal

14

charges to the jury under the particular instructions of

the trial court based on the particular facts of the case.

The jury verdict finding Dunnaville guilty of assault un-

der Count | of the indictment necessarily precluded the

jury verdict of finding Dunnaville guilty under Count

2 of the indictment; and the trial court could not avoid

the “double conviction” by setting aside the verdict as to

Count | after Dunnaville had already been placed in

jeopardy. This is particularly true when Dunnaville

made the appropriate exceptions to the rulings of the trial

court throughout the trial contending the trial court was

misinterpreting the rule of law as to double jeopardy as

argued here.

VIII. CONCLUSION

The Supreme Court of Virginia erroneously decided

the federal question of double jeopardy and its judgment

is clearly in conflict with decisions of courts of last resort

of other States and numerous lower federal courts requir-

ing this Court to clarify this rule of law. Because Dunna-

ville has received a sentence to the penitentiary for a

long term based on this doubtful decision about a princi-

ple of law which this Court must review soon, justice de-

mands a writ of certiorari be awarded to review the

judgment rather than a later review of the principles in-

volved in another case after Dunnaville has served all

or part of his sentence.

Respectfully submitted,

HERBERT M. DUNNAVILLE

By: John H. Kennett, Jr., his counsel

John H. Kennett, Jr.,

133 Kirk Avenue, Southwest

Roanoke, Virginia

Counsel for Petitioner

15

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VIII. PROOF OF SERVICE

I; John H: ‘Kennett, Jr., ‘counsel for the Petitioner

and a member of the bar of the Supreme Court of the

United States, do hereby certify that on the 27th day of.

December, 1973, I served a true copy of the foregoing pe-

tition for writ of certiorari on the Respondent, Com-

monwealth of Virginia, by mailing three copies of same

in a duly addressed envelope by first-class with postage

thereon prepaid addressed to Andrew P. Miller, Attorn-

ey General of Virginia, Supreme Court Building, Rich-

mond, Virginia.

JOHN H. KENNETT, JR.

Counsel for Petitioner

IX. APPENDIX .

This appendix consists of the judgment of the Su-

preme Court of Virginia sought to be reviewed.

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IN THE SUPREME COURT OF VIRGINIA ON

THE 28th DAY OF SEPTEMBER, 1973

HERBERT M. DUNNAVILLE, JR.

Plaintiff in error

against

COMMONWEALTH OF VIRGINIA

Defendant in error

The petition of Herbert M. Dunnaville, Jr., for a

writ of error and supersedeas to a judgment rendered by

the Circuit Court of the City of Roanoke, formerly the

Hustings Court of the City of Roanoke, on the 11th day

of January, 1973, in a prosecution by the Commonwealth

against the said petitioner for a felony, having been

maturely considered and a transcript of the record of the

judgment aforesaid seen and inspected, the court being

of opinion that there is no reversible error in the judg-

ment complained of, doth reject said petition and refuse

said writ of error and supersedeas, the effect of which is

to affirm the judgment of the said court, which court

shall allow court-appointed counsel the sum of $150 as

compensation for services rendered on this appeal, and al-

so his necessary direct out-of-pocket expenses.

And it is ordered that the Commonwealth recover

of the plaintiff in error the said amount paid counsel

appointed to represent him on this appeal, his necessary

direct out-of-pocket expenses and the costs to be assessed

in this case by the clerk of the court below.

A Copy,

Teste:

Howard G. Turner, Clerk

By: Allen L. Lucy,

Deputy Clerk

1-A