19 Gratt. 485 | Va. | 1868
The question of jurisdiction presented by this record is the leading one, and is not without difficulty. It grows exclusively out of the state of the law which is to govern the trial. It is not pretended that
But I do not think this plea is susceptible of this interpretation. Its only intelligible traverse is simply of the jurisdiction under the statutes of the Commonwealth. In truth it is a demurrer, though, in form, a plea. As such it seems to me an anomaly. I have not been able to find a precedent for it; nor have the learned and industrious counsel for the plaintiff in error been able in their researches to find any. blow ought the Commonwealth’s attorney to have been required to take issue upon it? If he had been, had he not the right to put in a general replication; namely, that the court had jurisdiction under the laws of the Commonwealth? If so, we should have had the singular spectacle of a legal enquiry into the actual state of the law, made and pursued under the forms of pleading, and that, too, when it is admitted there were other obvious and more appropriate ways of raising such an issue.
From this view, I conclude the plea was not a proper one in that form; and there was no error in rejecting it. But if I be mistaken in this view, and the plea was a good one and should have been received, is there any substantial error in its rejection to the injury of the prisoner ? It seems to me "not, and for this reason — that the rejection must betaken as tantamount to a finding of the jurisdiction. It was appropriate for the judge on the submission of the plea, seeing that it purported alone to deny the jurisdiction on the grounds
It clearly and solely depends upon the effect and application we shall give to the act of 27th April 1867, Sess. Acts 1866-7, ch. 118, p. 915. It is entitled “ an act to revise and amend the criminal procedure.” It doubtless grew, in a great measure, out of the emancipation of negroes, and the policy of obliterating the
This act does not, as is usual, take effect from its
There are two views to be taken of this question, either of which would be decisive of it:
I. First. As to the character of the act, whether prospective or retrospective. This, again is a question of legislative intent, for it is not doubted that it is in the competency of the legislature to make its laws retroactive wherever it does not conflict with the sanctity of contracts under the restrictions of the Federal and State constitutions, nor with the prohibition of ex post facto laws; but the courts uniform erly refuse to give statutes
H. As already intimated, there is another view of this question, which may be legitimately taken. It conducts to the same conclusion, and fortifies it, though from another aspect and by a different line of argument. It is not to be imagined, or believed, that the legislature in repealing chapter 205 of the Code, failed to contemplate or provide for the operation of such repeal upon pending prosecutions. It would scarcely consist with a proper respect for that body to suppose
I shall quote only so much of its language, as I design applying to our present enquiry, omitting for the sake of brevity and perspicuity its reference to “offences, acts, penalties, forfeitures, or punishments under the former law.” Thus abridged, it reads, “Eo new law shall be construed to repeal a former law, as to any right accrued or claim arising under the former law, or in any manner whatever to affect any right accrued or claim arising before the new law takes effect; save only that the proceedings thereafter had, shall conform, so far as practicable, to the laws in force at the time of such proceedings,” &c. This rule, however, is not to be observed, “ where such construction would be inconsistent with the manifest intent of the legislature.” It has been contended that this rule was meant to apply to cases of “ repeal by implication,” or constructive repeals; but I submit that its language is too broad and comprehensive to admit of this restricted sense. Its language embraces every “ new law,” repealing, whether in teims or by implication, a former law. Some stress is laid on the term “ construed,” as if it contemplated a case, where the fact of repeal was doubtful and therefore a matter of construction; but this restriction conflicts with the broad design of this section, which was to fix and limit the effect of repealing laws. Again, it is urged that this section served only to perpetuate the right, &c., while it changed the proceedings; but this cannot be so; for if the right were independent of, and separate from, the proceedings,-why should there be this saving of the proceedings ? The meaning evidently was, that the rights which were inherent in the proceedings should be preserved at all hazards; and the proceedings only to conform to the new law, when such change would not af
I am not unaware that, in the construction of this clause, it is usual to contend for a distributive rendering of its language, so as to refer these two terms to civil suits alone. I am not prepared to assent to this, and would beg leave to express, my individual views of it, upon which my brothers express no opinion. In the first place, it is clear that the preceding enumeration of “offences, acts, penalties, forfeitures and punishments,” is not, on the other hand, to be restricted to criminal cases alone, because the terms, “ acts, penalties and forfeitures,” are referrable to many civil remedies .or proceeding. It seems to me that both classes are treated interchangeably; and the intent is ,to save from the operation of a repealing law “ the rights or claims ” of parties either in a public
How at the time of the arrest in this case, the justice was necessarily governed by the old law; he was bound
In this posture of affairs, the question arises whether the abrogation by repeal of examining courts should be allowed to affect the rights or claims of the accused to such trial, arising from his commitment for examination under the former repealed law. I have already endeavored to show that, in my view, these “rights or claims” might attach to criminal as well as civil proceedings. If so, they were preserved from the operation of the repealing law. The only difficulty is, whether the claim of the accused to this preliminary examination is such a right or claim as was meant to be preserved to him by this rule of statutory construction. I am of the opinion, for the reasons already given, that it is. If then the prisoner had insisted on the 2d of July to his claim to this trial, by virtue of the former law, could it have been legally or rightfully refused to him? If the Commonwealth had chosen to disband the examining court, because annulled by the act of 27th April 1867, would it not have violated this principle of construction, and injuriously affected the claims of the prisoner ? These were grave and difficult questions. My course of reasoning has sufficiently indicated how I would have solved them. It was for the Commonwealth, without any appeal to the prisoner, or any presumption from his silence, to take her own course with his trial. She has done so; she has accorded to him the privilege of this trial, and has thus resolved whatever doubt rested upon the case in the prisoner’s favor; as she was bound to do. The case would have been different if the accused had chosen to deny the authority for this examination, and asked to be committed for trial in the County court; and in such event, doubtless, the same consideration would have dictated compliance with Ips request, and displayed the propriety of conforming the proceeding to the new law. But no
But when he got there, did the requirement of conforming to the laws, then in force, demand his remitment to the County court? I will not say that his silence or acquiescence in the examining court estopped him from thereafter objecting to its jurisdiction, or the legality of his remanding. But in pronouncing upon the rightfulness of his arraignment in the Circuit court, I do insist that it is material to consider that he raised no question by habeas corpus as to the legality of his imprisonment, or before his arraignment challenged the validity of the sentence through which he reached the Circuit court. Being there then by virtue of a proceeding, the benefit of which he had, and in conformity as I think with the law as it should be construed, he was hound to answer to the indictment in that court. Had he made a demand upon the finding of the indictment to be remitted to the County court for trial, the question would have arisen whether the proceeding could be so far conformed at that stage to the new law. But he made no such demand. It seems on the contrary, from the character of the plea, that the prisoner’s counsel avoided the averment of any wish or demand on his behalf for a trial in the County court. Perhaps it may have been inconvenient to distinctly prefer such a demand, as, it might be foreseen, it would most probably have been soon followed, if granted, by a return on his motion to the same court for final trial. Therefore the silence of the record on this point de
But it is said that it was incumbent upon the court, under the 16th section of chapter 207; of this late act to “ certify the indictment as soon as found to the Court of the county in which the offence is charged to have been committed.”
Without pausing to solve the doubts that have been suggested upon the construction of this section, it is sufficient to say, that it does not embrace all cases. For instance, it is obviously qualified by the 4th section of ch. 211, retaining for trial in the Circuit court, pending prosecutions for capital felonies. We must, therefore, construe this provision in connectiou with other parts and the general frame of the act, from which I infer it does not embrace a case like this emanating from an examining court, and thus being a proceeding protected from the operation of the repeal. Had this examination transpired in June, the case would thereafter have been pending in the Circuit court, and as such, not liable to the operation of the 16th section. The examining court upon remanding was functus officio;
Further it has been asked, what function does the 4th section of chap. 211, respecting prosecutionspending in the Circuit court, perform: or is it not superfluous, if this rule of construction is to have the effect attributed to it ? There is another and distinct operation for this section; it is by no means superfluous. The first part of it, confers in cases of misdemeanors,. &c., a discretion to try, &c., and the concluding sentence, if not used ex abundanti cautela, has the effect and was so designed, to take prosecutions for capital felonies out of the saving of the 18th section of chap. xvi. of the Code; so as to relieve the court of any necessity of seeking to conform the proceedings to the new law. Besides, it has been séeii that this 4th section of chap. 211, of the late act, is "limited to the Circuit courts; whereas, this statutory construction has a wider scope and embraces proceedings elsewhere.
From this two-fold consideration of this question of jurisdiction, I feel warranted in. concluding that the Circuit court, to wh'ich the prisoner had been remanded for trial, had jurisdiction to try his case, notwithstanding the repeal of examining courts by the late act.
I have thus endeavored to dispose of the only ques
This brings me to consider what are the powers and duties of a judge respecting a jury in a criminal cause under trial before him, both in and out of court. It is his appropriate function to preside over the jury while ■empanneled in court. He literally has the custody and
From this reasoning, which I fully sanction, I infer with much confidence, that upon any emergency or occasion occurring out of court, whereby the judge is properly or by necessity left in charge of a juror without the presence of the sheriff, it is within his official province to take such charge; and that the propriety of
Let us now apply this view of the law to the actual conduct of the judge, which is impeached in this case. The trial was a very protracted one. The jury was empanneled on the 23d day of June, and not discharged till the 9th day of July. It was composed of men drawn from distant homes, many of whom fell sick during the progress of the trial. The evidence upon the application for a change of, venue, shows that they were surrounded by a population whose minds were inflamed against the prisoner. There had already been one mistrial. There was every thing, therefore, in the situation of the judge, presiding over such a trial, to admonish him to unusual vigilance in watching over the health and comfort of the jury, and to repeat his cautions to the sheriffs to keep the jury together, and guard them against all extraneous influences, or the slightest impropriety of behaviour. Hence, the interests of the Commonwealth and the prisoner, the cause of justice, and his own sense of convenience and duty, all conspired in requiring of the judge in this remarkable trial the frequent precautions he took in visiting and enquiring after the sick jurors, and enjoining on the sheriffs the utmost strictness and care in guarding them while out of court. This was highly commendable and natural. It has no semblance of a hangingabout the jury room to pry into their deliberations, or drop some guilty whisper to influence their verdict.
The consideration of these circumstances also serves to explain and justify the conduct of the judge in this instance. "When in pursuance of the indulgence given the sick juror, the judge found him with the sheriff on the public portico of the hotel where others were sitting, he takes a seat by them as if by his presence to keep off intruders and prevent all improper approach.
But it is said to be dangerous to confide to a judge such power and discretion, so’ liable to be perverted to the pollution of jury trial. This, however, is true of all discretionary power. I cannot better express my view than in the language of a recent case in the Queen’s Bench, (Winser v. The Queen, 1 Law Rept’s Q. B. 309), upon the authority of the judge on a trial of felony, under certain circumstances, to discharge a jury
It is proper to take some notice of the cases that are supposed to show that the judge has not the power out of court, which the view I have taken ascribes to him. These cases are Sargent v. Roberts, 1 Pick. R. 337; Fish & another v. Smith, 12 Indi. R. 563; and Crabtree v. Hazenbaugh, 23 Ill. R. 349. The first was a case of a virtual instruction sent in the form of a letter by the judge to the jury in the recess; the second, of the judge visiting the jury in their room and giving them instructions in the absence of the parties and without their consent; and the third, of a judge, who upon being sent for by the jury, repaired to their room, and declined, when asked, to explain the meaning of his written instructions. The true principle of these decisions, is thus expressed by Oaton, O. J. in the last case: “ the policy of the law requires that all the proceedings of the court should be open and notorious and in the presence of the party, so that if he is not satisfied with it he may take exceptions to it in the mode pointed out in the law; and not be put to extra
But suppose I am wrong in this view of the judge’s authority out o'f court over his officers and jurors, and that we are to consider this case as one purely of the separation of the jury, and as if the juror had been left with some other person but the judge presiding over the trial. Upon this question, there are a great number of eases abroad, and in the States of the Union. Their name is “legion;” and we are indebted to the research and industry of counsel for a particular reference to them. I cannot be expected to review them. I am more particularly interested in the state of our own adjudications, so that I may not run counter to them, or unsettle the law with us. If it be conceded to the counsel for plaintiff in error that McCaul’s case, 1 Va. Cas. 271; and Overbee’s case, 1 Rob. R. 756, are authority for their position that Separation per se vitiates a vedict in a criminal cause, it must be allowed that Martin’s case, 2 Leigh 745; McCarter’s case, 11 Leigh 633, and Thompson’s case, 8 Gratt. 637, are to the contrary. I do not interpret Wormley’s case, 8 Gratt. 712, as settling, as it is contended, this conflict of authority. There is no reference to the prior cases, and it is manifest that that case was decided on the misconduct of the sheriff, which is specially animadverted upon, and censured. La this unsettled and indeterminate condition of our cases, I think we are authorized to deduce and lay down a rule not in conflict with them, as a whole; and in harmony with the general current of decisions elsewhere. And that rule seems to me to be this: that separation out of the custody and control of the officer is prima facie sufficient to vitiate a verdict; and that it is incumbent upon the Common
In the application of this principle to the case at bar, I do not think there is a rational doubt that the Commonwealth has by the testimony of the juror and sheriffs most satisfactorily repelled any, the slightest presumption of unfairness or tampering in the transient interview of the judge with the sick juror; and, indeed, the counsel of the plaintiff in error distinctly disclaimed any suspicion of it. On the contrary, the complaint is of the separation by itself, and the danger of such a precedent. It is also alleged that there is a peculiar hardship in this case, as the judge is required to pronounce on his own conduct. This, however, is not so. It would be the same if the judge were to misbehave towards the jury in open court, as by instructing them on the weight of testimony, or indecorously betraying to them his leaning in the cause.
This case has been argued at great length, and with eminent ability. I have not been able to notice all the points of the argument, or comment upon the many pertinent authorities that have been laid before us. I desire to acknowledge my obligations to counsel for their researches, and the benefit I have derived from their arguments. It is not that I slight either the one or the other, that I do not specially notice them; but because they lay outside of the immediate discussions that I have been pursuing, and apart from the view that I have been led to take of this case.
The other judges concurred in the opinión of Rives, J.
Judgment aeeirmed.