100 Va. 842 | Va. | 1902
Lead Opinion
delivered the opinion of the- court.
This is a writ of error to a judgment of the Circuit Court of Tazewell county, affirming the judgment of the County Court of that county sentencing plaintiffs in error to the penitentiary for a term of ten years each for the mukder of John Gr. Watts. It will he necessary to an understanding of the questions presented to make a brief statement of the case.
Owing to domestic troubles, John Gr. Watts and his wife, about eighteen months prior to his death, separated, and much litigation touching his estate followed. Partition had been made of what is known as the “Watts farm,” and the mansion house and a part of the farm .were set apart to John G. Watts and his son, Bowen Watts, and the residue of the farm to Mrs. Watts. The parties in interest were satisfied with this partition, and entered into possession of their respective parts. Mrs. Watts and Bowen Watts had entered into an agreement to construct a line fence between the properties as partitioned, each agreeing to furnish three hands
George and John Jones surrendered to an officer of t'he law, and William Jones was afterwards arrested, indicted jointly with his two sons, and 'all were tried jointly at the January term, 1902, of the County Court of Tazewell, William Jones being acquitted, and his sons, George and John, convicted of murder in the second degree, and sentenced to the penitentiary for ten years.
The clerk of the County Court issued a venire facias commanding the officer to summons twenty-four persons of his county, instead of sixteen, as the statute required, to be taken from a list furnished by the judge for the trial of the defendants, and, 'before the jury selected to try the case were sworn, t'he defendants moved the court to quash the venire facias, which motion was overruled, and this ruling of the court constitutes the first assignment of error that we are called upon to consider.
It is not stated in the bill of exceptions taken to this ruling of the court, but it does appear in the order of the court that counsel for the defendants were requested to point out any errors in the venire facias, whereupon they said, “they had none to point out.”
The statute in force when this trial took place, found in sec. 4018 of the Code, as amended (Acts of 1899-1900, p. 566), requires that “the writ of venire facias, in a case of felony, shall command the officer to whom it is directed to summon sixteen persons of his county or corporation from a list to be furnished him by the court of such county or corporation, or the judge thereof in Vacation, residing remote,” etc.
In Hall’s Case, 80 Va. 555, when the statute required that the writ of venire facias should command the officer to whom it was directed to summon “twenty-four persons to be taken from a list to be furnished by the judge,” etc., it appears that
In the opinion by Lewis, P., after quoting the statute, it is said: “These provisions of the statute in respect to impanelling juries axe not directory merely, but imperative. They are rules which are made essential in proceedings involving life or liberty,
“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 process required by the common law and also by statute.” And, after pointing out the particulars in which the statute had been departed from, the opinion further says: “This the statute requires, and if one of the formalities which it prescribes may be disregarded, all may be set at naught.”
This decision, and the decisions in Richard’s Case, 81 Va. 110, and Honesty’s Case, Ibid. 283, to the same effect, doubtless gave rise to the amendment of our statute in regard to irregularities in impanelling juries in civil cases so as to make the statute apply also to'criminal cases. Act of January 18, 1888 (Acts of 1887-’8, p. 15), and section 3156 of the Code. That statute, as amended by the act of February 27, 1894 (Acts of 1893-’4, p. 494), is as follows:
“ZSTo irregularity in any writ of venire facias, or in the drawing, summoning, returning or impanelling 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; and no judgment shall be reversed for the failure of the record to show that there was a venire facias, unless made ground of exception in the trial court before the jury is sworn. This act shall apply to jurors and juries in all cases, criminal as well as civil.”
The amendment of the statute applying it to criminal cases we have italicized.
In Spurgeon’s Case, 86 Va. 652, the judgment being rendered before the passage of the act of January 18, 1S88, supra, the previous statute in regard to irregularities in impanelling
After stating that strict compliance with all essential formalities in a felony case is necessary to constitute a proceeding by “due process of law,” the opinion continues: “If we look to the writs of venire facias, as they are copied into the record, it is very clear that the statute -was not complied with. But these writs are not properly part of the record, as they were not made so by bill of exception or otherwise, and we have only referred to them by way of illustrating the proper procedure under the statute. Still the result is the same, for, leaving them out of the ease, there is nothing in the record to* show that any jury process was issued in the case at all, much less that the jury was summoned according to the formalities prescribed by the statute.” o
It seems to be conceded in the argument in this case on behalf of the Commonwealth that, but for the act of Beibruary 27, 1894, supra, the decision in Spurgeon’s Case would control, and a new trial would have to be awarded plaintiffs in error; therefore, the contention is that the failure of counsel for plaintiffs
This brings us to a consideration of the decisions of this court since the passage of that act.
In Vawter’s Case, 87 Va. 247, when the statute required that the writ of venire facias command the officer to summon twenty persons as jurors for the trial of a felony case, the writ was issued in due form for the trial, and the judge of the court gave the sergeant to whom the writ was directed a list of twenty-nine persons from which to summon the twenty jurors as required by the statute, and when the case was called for trial, it was found that of the persons whose names were upon the said list, a sufficient number of jurors to constitute a panel of sixteen, free from exception, could- not be had, whereupon the court, without directing another venire, ordered the sergeant to complete the panel by summoning six persons, whose names were upon a list made by the sergeant and adopted by the court, who were accordingly summoned, but without a writ of venire facias issued by the clerk, and no objection on this ground appeared to have been made !by the accused before the swearing of the jury.
There it was contended that the errors in summoning, selecting, and impanelling the jury, appearing upon the face of the record, were but irregularities of which the prisoner could not take advantage except by objection thereto, m'ade before the jury was sworn, or by showing that he had been injured thereby.
The first question was whether the list furnished by the judge containing the names of twenty-nine persons instead of twenty, and purporting to be “for trial of felonies” generally, was irregular, and if so, was the prisoner, by section 3156 of the Code, precluded from taking advantage of the irregularity by his failure to make objection on that ground until after verdict, it not appearing that he was injured by the irregularity. It was held that the list furnished by the judge was an irregularity,, and that the prisoner could not take advantage of it after ver
As to the other question presented in Vawter’s Case, supra, and arising on the objection, made after verdict, to the action of the court in ordering an additional number of persons to be summoned to complete the panel, without directing another venire facias, it ivas held that the abjection was well taken, the opinion saying: “This court has repeatedly decided that a venire facias is an indispensable process, both at common law and under the statute, to authorize an officer to summon a jury in a felony case, and that the courts have no power to dispense with it, although, as was said by Spencer, C. J., in People v. McKay, 18 Johns. 212, they may not perceive much use in continuing it. The objection, therefore, was in time, although made for the first time on motion in arrest of judgment; for, as ivas held in Jones’ Case, ante p. 63, the act of the legislature, aboAre mentioned (act of January 18, 1888, supra), was intended to cure any irregularity in the writ of venire facias, not to the prejudice of the accused, if not objected to before the swearing of the jury, but not to apply to a felony case in which there was a failure to issue a venire, when and as often as a venire is required; so that, in this particular, Hall’s Case, 80 Va. 555, is not affected 'by thiat act.”
In Muscoe’s Case, 87 Va. 460, it is held that, though a Avrit of venire facias has ‘been exhausted by the answers of the veniremen, yet it should be quashed for irregularity on its face, as such writ is, in legal intendment, no process at all. But, where the writ was quashed on prisoner’s oavu motion it afforded no ground for reversal.
The provision of the present statute requiring that the writ of venire facias, in case of felony, shall command the officer to whom it is directed, to summon sixteen persons (not twenty-four) of his county or corporation, from a list to be furnished him by the court, etc., is no less imperative than was the statute when Spurgeon’s Case was decided. The only difference between the two statutes is as to the number of persons to be summoned. Eo subsequent legislation on the subject has changed t’he law as laid down in Spurgeon’s Case. On the contrary, the amendments since passed have been enacted in the light of that decision, without in any way questioning its force or authority, and must therefore he regarded as legislative approval of the view there taken. Having held in Spurgeon’s Case that a venire facias which summoned a different number of persons from that called for by the statute was invalid, which we understand means void, we must hold that the writ in the case at bar, which summons a different number from that prescribed, is also invalid, or overrule Spurgeon’s Case, which we are not warranted in doing.
As was said in Hopt v. Utah, 110 U. S. 574, cited with approval in Spurgeon’s Case: “That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the conduct of the accused, much less by his mere failure, when on trial or in custody, to object to unauthorized methods.”
In the case at bar, plaintiffs in error did object to the venire facias, and within the time that the statute required the objec
If a clerk may not depart from the provisions of a statute, as was done in Wash’s Case, supra, by adding to the venire facais the words, “and owns property, real or personal, of the value of one hundred dollars at least,” when the statute only required that the twenty-four persons summoned should be “freeholders,” or, as in Spurgeon’s Case, command the officer to whom the wilt was directed to summon sixteen persons as jurors, when the statute directed twenty-four to be summoned, why may the clerk make the writ command twenty-four persons to be summoned when the statute required only sixteen to be summoned? In each instance there was a departure from the provisions of the statute, and, as was said by Allen, J., in Wash’s Case, “no such power has been intrusted to any functionary, and, not being 'authorized by law, the court erred in overruling the motion to quash;” and by lewis, J., in Spurgeon’s Case, “if one of the formalities which it (the statute) prescribes may be disregarded, all may be set at naught.”
It may be that some of the rules of practice and procedure
It is not our province to make or unmake the law, but to construe it as written when it becomes our duty to do so, and as we interpret section 3156 of the Code, as amended, supra, the plain meaning of its language is that, if there be irregularity in any writ of venire facias, as in drawing, summoning, returning or impanelling of jmors in felony cases, .an objection to the writ by the accused before the jury thus selected is sworn must be sustained, and though the objection be not made before the verdict of the jury is rendered, if it appeal's that the accused has been injured by the irregularity, he may take advantage of it by motion in arrest of judgment, or in the appellate court.
It is therefore our opinion that the County Court erred in not sustaining the motion of plaintiffs in error to quash the venire facias.
In the progress of the trial the Commonwealth introduced three witnesses to prove that William Jones had made threats against the deceased, and to the introduction of this evidence plaintiffs in error excepted generally, but the exceptions were overruled, and the evidence was admitted. They afterwards moved to strike it out, and this motion was .also overruled, to which ruling exception was also taken.
This assignment of error involves the important question as to whether or not, in a joint prosecution against several defendants, where evidence is admissible as to one .and not as to others, and there is a general objection to its admissibility by such others, it is the duty of the court, of its own motion, to limit the evidence to the party against whom it is admissible, or of tbe objectors to make a motion to that effect.
As William Jones, tbe only defendant as to whom the evidence was admissible, was acquitted at the former trial, the
The next assignment of error relates to all of the instructions given for the Commonwealth over the objection of plaintiffs in error, but this objection is not urged here, except as to instruction No. 8, whitíh is as follows:
“A mortal wound given with a deadly weapon, in the previous possession of the slayer, without any, or upon very slight, provocation, is prima facie, wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving-extenuating circumstances.”
This instruction, as is conceded, propounds a correct proposition of law, and has been repeatedly sanctioned by this court. Honesty’s Case, supra, and authorities there cited. In that case, the prisoner struck his victim the fatal blow with a half of brick which he had but a moment before picked up; and because plaintiff in error, George Jones, perchance had in his hand the iron post-hole digger with which he had been working, and with which he struck the deceased from his horse, doe's not differentiate the case from Honesty’s Case and make the well-settled proposition of law propounded in the instruction inapplicable to it. Therefore the instruction was properly given.
The refusal of the court to give instructions Nos. 7, 8 and 9 asked for by plaintiffs in error is assigned as error. Each of these instructions contained practically the same proposition of law, viz.: that William Jones, and his two sons, plaintiffs in error, were lawfully and rightly where they were engaged in the construction of the line fence on the “Watts farm,” and when the homicide of the deceased occurred. While these instructions were abstractly right, still no question was raised, nor could have been raised, from the evidence in the case, as to the right of Willi'am Jones and plaintiffs in error to be where they were when the homicide was committed, and the instructions could have served no other purpose than to raise an immaterial
The remaining assignment of error calls for an expression of opinion from us as to the weight of the evidence, which we prefer not to give, as the ease, for the error pointed out, has to be remanded for a new trial.
The judgment of the Circuit Court complained of must be reversed and annulled, and this court will enter such judgment as the Circuit Court ought to have entered, setting aside the verdict of the jury, and remanding the cause to the County Court for a new trial.
Dissenting Opinion
dissenting.
I am constrained to dissent from the opinion of the court in this case.
I concede in the outset that the venire facias which required the sheriff to summon twenty-four men when the statute directed sixteen to be summoned was an irregularity. I concede that, objection having been made to the writ by a motion to quash -before the jury were sworn, these facts, standing alone, might warrant the court in quashing the writ. The deviation of the writ from the statute was not in a particular which could have affected the rights of the accused. It was unlike the case of Wash v. Commonwealth, 16 Gratt. 530, where the clerk interpolated into the writ a direction that the jurors to be summoned should “own property, real or personal, of the value of one hundred dollars !at least,” words not occurring in the statute, and the effect of which was to change the qiialifications of the jurors. In this case, the law provided that the venire facias should issue to summon sixteen persons for the trial of the prisoners. The writ which was issued and actually served provided that twenty-four persons should be summoned. Prom
It is true that in the case of Wash v. Commonwealth the court held a general motion to quash the venire facias sufficient to bring before the trial court every objection that existed to the writ. It is true that the court which decided Wash’s Case is worthy of all respect, but I presume to think that its judgment in the case is not in accordance with the trend of judicial opinion at this day, which demands that objections shall be specifically stated, “to enable the trial judge to understand the precise question upon which he has to rule, and to relieve him from the burden of searching for objections which counsel is unable to discover, or which he sees fit to conceal, and to afford the opposite party an opportunity to obviate it before the close of the trial, if well taken.” 1 Thompson on Trials, p. 561; Greenleaf on Ev. (16 ed.), note to pages 6 and 7.
It is time that these quotations are dealing directly with the subject of the admissibility of evidence, but that would rather serve to strengthen than to diminish the force of what has been
Prisoners are entitled to counsel as a matter of right, and counsel represent them in the presence of the court. There are rights which the prisoner cannot waive, and which, of course, counsel cannot waive for him, but there are mere irregularities as to which counsel may bind him either by express waiver or by conduct, as when he remains silent when it was his duty to speak. ' ” 1
There is a broad distinction between Wash’s Case ‘and the one under investigation. In. that case there was a motion to quash and nothing more, but here the court called upon counsel to point out any errors that might exist in the writ, to which counsel replied that they had none to point out, -and thereupon the motion to quash was overruled. I think it Was the duty of counsel to answer the question of the court fully and frankly.
Reversed.