Hall v. Commonwealth

80 Va. 555 | Va. | 1885

Lewis, P.,

delivered the opinion of the court.

The statute relating to the summoning and selecting of juroi’s in cases of felony, as it stood in the Code -of 1860, chapter 208, has been amended, and the law, as it now is, provides as follows: “3. The writ of venire facias, in a case of felony, other than where the punishment may be death, shall command the officer to whom it is directed to summon sixteen persons of his county or corporation to be taken from a list to be furnished him by the judge of his county or corporation, residing remote from the place where the offence is charged to have been committed, and qualified in other respects to serve as jurors, to attend the court wherein the accused is to be tried, on the first day of the next term thereof, or at such other time as the court or judge may direct. * * * 4. In a case where the punishment may be death, the writ of venire facias shall require the officer to summon twenty-four persons, in the manner provided in section three of this chapter; and in any case of felony, where a sufficient number of jurors for the trial of the case cannot be had from those summoned and in attendance, the court may direct another venire facias, and cause to be summoned from the bystanders, or from a list to be furnished by the court, so many persons as may be deemed necessary to complete the jury. * * * * 8. In all cases of felony, where the punishment cannot be death, the jury shall consist of twelve, summoned as aforesaid, and free from exception. From the panel summoned, the accused shall have the peremptory right to strike off four persons. In all cases where the punishment may be death, there shall be selected from the persons summoned a panel of sixteen persons, free from exception, and from this panel the accused may strike four, and the remaining twelve shall constitute the jury; or if the accused does not strike them off, twelve of the panel shall be selected by lot, who shall constitute the jury.” Acts 1877-78, p. 340, et seq.

These provisions of the statute, in respect to empaneling juries, are not directory merely, but imperative. They are rules which are made essential in proceedings involving life or liberty, and it is the right of the accused to demand that they be strictly complied with. To disregard them is to deprive the accused of that “ due process of law ” which is provided by the legislature, and which is required by the fundamental law of the land.

In the present case the record shows they have not been complied with, and the judgment of the circuit court is therefore erroneous. Of the twenty-four persons originally summoned, sixteen having been found free from exception, the jury for the trial of the accused ought to have been selected from the panel of sixteen who were thus found to be qualified. And the selection should have been made by the accused striking four from the panel, leaving the remaining twelve to constitute the jury; or, if the accused chose not to do so, then twelve of the sixteen should have been chosen by lot. This the statute requires, and if one of the formalities which it prescribes may be disregarded, all may be set at naught. Moreover, it was error to cause bystanders to be summoned without directing another venire. At common law a venire is indispensable to authorize the sheriff to summon a jury; and the statute, as we have seen, provides, that where a sufficient number of qualified jurors cannot be had from the twenty-four persons originally summoned and in attendance, the court may direct another venire to summon as many persons as may be deemed necessary to complete the jury, either from the bystanders or from a list to be furnished by the court. But in any event a venire is indispensable; and in a felony case, and especially in one affecting the life of the accused, the court is not authorized to dispense with a process required by the common law and also by the statute. And the omission to direct a venire, when required, is an error apparent on the record, of which advantage may be taken on motion in arrest of judgment. Whart. Crim. Pl. & Pr. (8th ed.), sec. 759; The People v. M’Kay, 18 Johns. 212. The accused cannot, therefore, be considered as having waived the right to raise the objections now urged, because of his failure to do so before the jury were sworn. On the contrary, he must be considered as standing on his legal rights throughout, and as waiving nothing. For it is not he alone who is concerned. The public has an interest in his life and liberty, and neither can be taken except in the mode prescribed by law. We are of opinion that the judgment ought to have been arrested, and must therefore be reversed.

JUDGMENT REVERSED.