87 Va. 63 | Va. | 1890
delivered the opinion of the court.
The indictment charges that the prisoner, “Charlie Jones, on the 24th day of December, in the year 1889, within the said city, in and upon one Chalmers Warwick, then and there being, an assault did make, and with a rock in the hands of him, the said Charlie Jones, then and there had and held, the said Charlie Jones then and there him, the said Chalmers Warwick, did feloniously, maliciously, and unlawfully beat, ■wound, ill treat, and cause bodily injury, with intent in so doing him, the said Chalmers Warwick, to maim, disfigure, disable, and kill,” etc.
There was a demurrer to_ the indictment, which was annulled, whereupon the prisoner was put upon his trial, and the jury, having heard the evidence and the argument of counsel, returned a verdict in these words: “We, the jury, find the prisoner guilty of malicious assault, and fix his sentence at five years in the penitentiary.” He thereupon moved the court to set aside the verdict, and to grant him a new trial, but the motion was annulled, and sentence pronounced in accordance with the verdict.
Taking up the assignments of error in the order in which they are presented, we are of opinion that the demurrer to the indictment was rightly overruled. The indictment sufficiently conforms to the language of the statute (Code, sec. 3671), and is sufficient.
Lawrence’s Case, 30 Gratt., 845, to this extent is consequently overruled.
The Attorney-General, in support of this ruling, refers to section 3156 of the Code, which provides that “no irregularity in any writ of venire facias, or in the drawing, summoning, returning, or impaneling of jurors’shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the swearing of the jury.” But this section was not intended to apply to juries in felony cases, as is obvious not only from the context, but from .section 4048, which makes it apply to jurors in cases of misdemeanor. For why expressly declare in the last-mentioned section that the provision shall apply to misdemeanor cases if it .was originally intended to apply to all cases, criminal as well as civil? It is made, however, to apply to felony cases by an act approved January 18, 1888 (Acts 1887-88, p. 18); but does that meet the objection under consideration ? We think not. The object of the section, as amended by the act just mentioned, is to cure any irregularity in the venire facias, but not to apply to a felony case in which there is no venire at all. The venire in every case of felony is a part of the “due process of law” which the legislature has provided, and it would require very plain language in a statute to justify the courts in holding that the omission to-direct the writ, when required, is cured by verdict if not objected to before. People v. McKay, 18 Johns., 212.
Bristow’s Case, 15 Gratt., 634, which has been referred to, has no application. In that case the objection was, .not that
The difference between that case and this is that here the omission to direct a venire leaves the record destitute of an essential part, which, therefore, cannot be supplied by presumption nor affected by the doctrine of waiver; whereas any defect in selecting the jury from the persons brought in under the venire, not being thus essential, may be waived; and so, upon the same principle, objection to the competency of a juror must be made before he is sworn upon the jury, unless by leave of the court.
Another well-founded objection is, that the verdict itself is defective, and ought, on that ground, also to have been set aside. The charge in the indictment is that the injury was done maliciously, with intent to maim, disfigure', disable, and kill. But the verdict simply finds the prisoner guilty of “ malicious assault,” without even saying with what intent the assault was committed. The rule is that the verdict must be a complete finding, in due form, upon the whole issue, and if it does not find the issue presented, or is silent on some element of the offence, it should be set aside, as no valid judgment can be recorded upon it. Randall’s Case, 24 Gratt., 644, is exactly in point. In that case the indictment was for shooting with intent to kill, and the jury found a verdict of “malicious shooting.” This court held the verdict fatally defective on the ground that “malicious shooting merely is in itself no offence at all,” and reversed the judgment of the lower court.
The next question arises upon the prisoner’s second bill of exceptions, which states that after the evidence had been closed the court announced that the argument before the jury would be limited to thirty minutes on a side, and restricted the counsel accordingly, to which ruling the prisoner excepted.
We are of opinion that the exception is well taken. It ap
It is the right of every party charged with crime to be fully heard by counsel on his whole case, although the court, undoubtedly, has a superintending control over the course of the argument to prevent the abuse of that or any other right. It is a power, however, to be exercised with discretion, and with reference to the particular circumstances of each case, subject to review by an appellate court. Ward’s case, 3 Leigh, 743 ; Proffat, Jury Trial, sec. 249.
In People v. Keenan, 13 Cal., 581, which was a prosecution for a felony, and in which case fourteen witnesses were examined, the trial court restricted the argument to an hour and a half for each counsel, of which the prisoner had two, and this was held to be error. In Dille v. State, 34 Ohio St., 617, eleven witnesses were examined, and the evidence, which occupied half a day in its delivery, was circumstantial and conflicting. The accused was defended by two counsel, who were limited by the court to thirty minutes in the argument, and it was
Another assignment of error relates to the refusal of the court to stop the trial to enable the counsel for the prisoner to prepare a bill of exceptions. It appears that in the progress of the trial the attorney for the commonwealth propounded sundry questions to several of the witnesses touching the identity of the prisoner, which the counsel for the latter moved the court to require to be reduced to writing, but which the court refused to do, whereupon he asked for time to prepare a hill of exceptions, which motion was also refused, on the ground that there would be no difficulty in preparing the bill after verdict, to which ruling an exception was taken.
The usual practice in jury trials is for the party excepting to any ruling of the court to “save the point” at the time the ruling is made, and to formally prepare the bill of exceptions afterwards during the term. 4 Min. Insts., 745; Page v. Clopton, 30 Gratt., 415. But it is merely a question of practice, which is largely left to the discretion of the court, to be exercised according to the circumstances of the particular case; and unless the appellant court can see from the record that
For the reasons, however, already stated, the judgment must be reversed, and the case remanded for a new trial.
Judgment eeveesed.