*1 Mytheville Paul Wessells v. Commonwealth.
June 1935. Present, All the Justices. *2 states case. Mapp Mapp, plaintiff & for the in error. *3 Staples, Attorney-General,
Abram P. Edwin H. and Gib- Tyler, Jr., Attorneys-General, son and D. Gardiner Assistant for the Commonwealth.
Campbell, J., C. delivered the of the court. plaintiff in error was convicted murder in the degree punishment imprison- first fixed his at life penitentiary. ment in the The trial court overruled a jury motion to set aside the verdict of the and entered judgment brought thereon the which is under review by this writ of error. arraignment plea
After the accused and his guilty, prospective the record discloses that when the jurors by were selected lot and called to the bar to be upon dire, Kelley examined their voir the name T. of Otho appeared upon shows, far list. So as the record with- Kelley jury out examination of as to his fitness for service, any request upon part or without ex- his to be jury service, court, challenge from cused without attorney either the for the Commonwealth or counsel for defendant, objection defendant, but over ex- busy Kelley ground he “was on the eluded as assigned the court picking action of tomatoes.” That as error. 1932, chap- Code, amended, Acts as 5985 of the
Section jury “any fruit 141, page exempts from service ter harvesting crops.” actively engaged grower his while In- In edition of the New Merriam-Webster second his Dictionary, defined: word tomato is thus ternational cultivated, perennial widely usu- American “South herb ally as an for fruit.” annual its Kelley a fruit
If it be conceded that service, grower, clearly exempt from then he was disqualified but in no reason. sense was he words, request (if a fact it was other to the court harvesting “actively engaged crops”), that he was his serving jury, that he then was be excused but, stated, grant request; duty of the court to as his Kelley to be ex the record not disclose that asked does cused, right therefore, no to assume that we have he did. Code, by 4895 of the amended Acts
Section chapter 23, page 24, provides, part, the writ of felony venire command officer in case shall facias twenty persons to whom it is directed to summon jury service, twenty-four persons from a selected list by him furnished the clerk of court. The mode of selecting jurors undergone change in radical re- has years. being prepared cent now Instead list court, by prepared it is commission now completing selected the court. The former method *4 panel deficiency jurors the when there a of has also is changed by adoption Formerly been the of section 4896. by- province it was of to from the the the court summon persons complete the a number of to standers sufficient panel; provisions the 4896 man- but under of section the datory duty imposed upon supply the de- is the court to selecting ficiency by provided from the names on the list by a number of sections 5988 5990 sufficient 668 complete panel. to
names the It is thus seen that was legislature the of manifest intention to the divest prerogative trial court of its former in the selection of juries, cannot, and to us it is manifest the court arbitrary power, deplete panel exercise of an objection over the an of accused. If the court had the arbitrary power Kelley to exclude for the reason that he busy picking tomatoes,” power “was then it had the to jurors exempt provisions all exclude who were under the notwithstanding amended, jurors section serving willing disqualified were not from and were jurors. arrogate permit serve as To to itself court power permit is such a ac- court take statutory right being by cused the tried selected by lot, by and to substitute therefor a selected court. impinges upon
This conclusion in no wise the doctrine Case, announced in Fishburne’s Va. E. 443. S. question In that case the was whether or not the action excluding, trial court the motion of the Commonwealth, jurors, prisoner two denied the a fair impartial trial. It held action error, court did not constitute reversible reason judgment upon part the error of the court was harmless inasmuch as the afforded a impartial jury duly trial qualified. an judgment In the at no case bar error of is involved. ruling usurpation The vice in the trial court is legislative prerogative—a prerogative peculiarly within legislative province government. branch discharged error, It is where a on his voir dire is accepted, when he should been but have this error is place cured if his is afterwards who also filled one competent. entirely This from that situation is different judge, motion, competent which a of his tells own juror to stand aside. assignment opinion,
In our well the first error founded. *5 a other come now to discussion several
We alleged by court. committed the trial errors by follows: made is as case Commonwealth August, 1933, accused, influence under the while fight engaged Dewey liquor, in a fist with Coard severely beaten, shortly which the and after accused was fight “he had accused Parker stated Gus going been in trouble with Coard and that get day fight From the to the time even.” other, spoken tragedy to each the two men had not though neighborhood they vil- in the same lived lage daily. and came in contact almost On Greenbush Saturday, July 28, 1934, who had Coard and the drinking excess, Mathias; been were in the store J.of S. Coard, peo- besides and other accused there several store; ple in the the accused went into the toilet which in the rear the store and there obtained the handle prop of a wire which had been back stretcher used door; him, held he re-entered with the club behind store, up sitting in walked behind Coard who was chair, leaning against post, any back and without warning whatsoever, blows, him struck two or more shortly Ralph the effects of which thereafter died. Coard stop him; told Mathias accused to and took the club from house, nearby he then left the store and went to a sat upon steps boy by down the front and to a little said Sawyers, your the name of “Some more damn business. * * * get I will even with man that me like treats Davis, that.” After his arrest Warner stated: fight Dewey “I wouldn’t have done I had this but with ago year you whip about a know. I wasn’t able to my up my him I fist and made mind that the next something guess time I had I could use. I I made a mis- you.” take to talk to insanity, hereditary
The defense relied both insanity insanity superinduced by drugs the use liquor. was, substance,
The evidence offered the accused as follows: thirty At the time of the offense accused was *6 years age; high graduate; he was a school while at- tending college Wilmington, Delaware, business in he suffered a severe attack of scarlet fever which necessi- leaving tated his and did he not thereafter re-enter school; began using after return his home he intoxicants. drinking during years His increased and for several prior killing only months liquor accused not drank excess, aspirin, but became addicted to the use of drops, peppermint Bateman’s essence of and various so- called cordials. One witness testified that he had seen aspirin thirty two accused take dozen within min- tablets utes; slovenly dress, complained that he in became his physical pains very gloomy and was and morose. The year evidence further that in showed 1924 the mother trouble; had treated for been mental that in years necessary recent it became to send her to a sana- disorder; torium to be treated for nervous that the ma- grandfather mentally unsound; ternal of accused was great hospital that a aunt the accused died in the Williamsburg; paternal the insane at that on the side eight mentally unsound; his relatives considered suicide; one, that some of them had committed that insane, jail while had in died that one was at that asylum. in time confined an Hall, expert diseases,
Dr. K. an in mental James testi- opinion fied that at the time of the his killing, possessed power neither sufficient will to restrain impulse murderous nor the seriousness of his understood rebuttal, lay the act. In the Commonwealth introduced that ac- and Dr. L. Kellam who testified witnesses W. cused was sane. objection of ac-
The of the court to sustain the refusal Kellam, ground that of Dr. cused to the evidence expert, court at the an and the refusal of the was not a motion to strike conclusion of his evidence sustain assigned error. same prac- had been It that Dr. Kellam was shown many competency ticing years. of a physician court, it is shown question for the unless witness is a in the admission court abused its discretion has evidence, interfere. No abuse court will not this Upon exami- case. his has been shown this discretion question: Dr. Kellam was this nation asked your on the record in this case and examina- “Based day tion, you say you on would or would club, Dewey hit Coard with a which Paul Wessells evidence, and from which blow or has been introduced time, Dewey died, Paul at the blows Coard Wessells was sane or insane?” prac- question to the covers
The answer witness tically pages and would but encumber two petition for a writ of error to set it out in full. *7 this is said: presented do not that a case has ever been
“We believe Court, in which a man’s life was at to this Honorable given by where a doctor has been the Circuit Court stake given in the latitude Dr. Kellam the instant He case. testify expert, powerful did not as an but he made a most argument of the Commonwealth.” and effective behalf experience thirty years more After an of than judge, agree lawyer a and a we are constrained to as Through for the accused. with the contention counsel entire answer the doctor discusses the evidence out the angle every and draws own from almost his conclusions province not on the conflict evidence. Such though testifying expert. witness, as an he be even susceptible question propounded an-affirma negative prac answer and did call what tive or argument tically an of the case. There is amounted to expert nothing of an wit about the evidence sacrosanct obtaining testimony from the usual method of ness and involving insanity, question expert, in a case an question embody propound hypothetical counsel ing evidence facts which the tends all the material affecting question upon which the witness is prove
672
express
opinion.
Simpkins,
asked to
an
Lester’s Ex’r
117
v.
55,
1062;
Upton
Reeve,
Va.
83
E.S.
L. J.
&
123 Va.
Co. v.
241,
277; Tugman
96
Riverside, etc.,
Mills,
E.S.
v.
Cotton
473,
144 Va.
604, this court dealt with the latitude be accorded an expert Judge Daniel, speaking court, witness. for the agreed generally said: “But it would seem to be opinion such case the of the witness is to be restricted to science, matters and that he is not to be allowed to give opinion things jury may sup- an on with which a be posed equally acquainted. Philips 761, to be well notes. especially, questions And shaped should be so given any and the opinion answers so as to exclude the medical witness as to the on credit the witnesses truth of the facts testified to others.” McMechen, 683,
See Rep. McMechen v. Va. 41 Am. W. 682; Commonwealth, 368; Mitchell v. 141 Va. 127 E.S. Commonwealth, Thornton v. 113 Va. 73 E. 481. S.
In our the refusal of the court to sustain the motion constitutes reversible error. give following
The refusal of the court to instruc- assigned tions is as error: “The court instructs the that, upon case, the trial of if a reasonable doubt necessary guilt fact to establish the of the ac- charged cused the indictment be raised the evi- dence, evidence, or lack *8 decisive, of such doubt is jury acquit the must the since a verdict of ‘not guilty’ guilt no means more than that the of the accused precise, specific, has not been established in the and nar- prescribed by row form law. jury any juror
“The court the instructs that if in this hearing case has such reasonable doubt after the evi- case, receiving dence in this their instructions listening arguments counsel, court and to the of such
673 agree should not to a conviction the accused opposed by that is such doubt. jury
“The court instructs the the character good proved case, bad, accused when whether is by them, jury a fact to be and if from considered guilt the evidence doubt as have reasonable you acquit accused should him.” It be conceded em must the instructions body question doctrine on the of reasonable familiar doubt, and were this not a case where defense insanity interposed, it error would be refuse give however, is, them. There another doctrine as universally recognized, is, every and that man is presumed responsible to be sane and until his acts contrary appears, proving and the burden insan ity person alleges corpus on the is who it. When the proof delicti has been established and adduced that act, committed ac is sufficient sanity; cused to raise a doubt reasonable as to his go step prove must one further the satisfaction that he insane the time at com mission the act. given
It is shown the cases below that this doctrine firmly planted jurisprudence. Baccigalupo’s in our In Case, (74 Va.) 807, Rep. 795, 33 817, quoting Gratt. 36 Am. Case, (61 Va.) 860, 868, Boswell’s 20 in- Gratt. approved: struction was “The are instructed that every presumed sane, possess man is to be and to a suffi- degree responsible cient of reason to be for his crimes contrary proved until to the satisfaction of the jury.” holdings To the same effect are the in Thurman’s 912, Case, 916, 99; 107 Va. Case, 489, E.S. Hite’s 96 Va. 895; Dejarnette’s Case, S. E. 75 Va. 878. Dejarnette’s Case, supra, interposed the defendant insanity. defense of give The court was asked to an in- prisoner struction which declared “that tois be ac- ground quitted insanity, unless the are beyond killing a reasonable satisfied doubt
674 by of the produced The refusal mental disease.” assigned give In as error. court the instruction court, Judge Staples sustaining trial action proposition in this instruction is asserted said: “The manifestly be satis- idea must based sanity of the ac- beyond of the all doubt fied reasonable prove cused, prosecution required precisely is guilt It to warrant conviction. of the defendant court is in direct conflict the decisions Baccigalupo Va.) 860, (61 Case, and Boswell’s 20 Gratt. Rep. (74 Va.) (36 Commonwealth, 807 Am. V. 33 Gratt. 795). unanimously that the Common-
“In these cases it was held having corpus delicti, wealth, and that established accused, done has made out her case. If act was insanity, prove it he he must relies on defense jury. If, upon evidence, the whole the satisfaction act, they when he he was insane committed believe acquit ground; upon any they him on that but not will yet, they sane, fanciful idea believe he was then may sanity, doubt of he is as there be a rational such Insanity easily acquittal. to an is therefore entitled feigned disproved, public safety and hard to be and re- quires it not be less than satis- should established factory evidence.” Longley’s Case, 807, 812, 339, 341, 37 E. Va. S. charge
where the murder and the defense in- sanity, approved court “The court this instruction: presumes further the law the ac- instructs the proved guilty beyond to be innocent until is cused doubt, if there is the minds of the reasonable guilt jury any reasonable doubt him, duty acquit it and that mere law makes their strong, guilt, suspicion probability however his convict, greater nor if not sufficient to sufficient charge weight supports preponderance of evidence conviction, But to warrant his his in the indictment. clearly, guilt proved thereof the evidence must be so *10 strong, every hypoth- exclude must be so as to reasonable of But in esis his innocence. this connection the court this, jury further in like tells the cases where the prisoner up insanity irresponsi- of sets the defense bility intoxication, produced voluntary rely he cannot having simply on of raised rational doubt the minds jury the as to whether he was so drunk the time he at responsible therefor, committed the crime as not to be prove upon but the burden is him to this fact the satis- jury fairly faction the results from all evidence.” assignment There is no merit this error. assignment upon
The next of error is the based giving of this instruction: “The court further instructs jury they pre the if believe the evidence that killing, grudge to the of the vious time there awas on prisoner part deceased; the of the toward the prisoner previously get had declared that would even deceased; with the and that he killed the be deceased grudge, killing cause this aforesaid then such was will ful, deliberate, premeditated, murder in the and is degree.” first entirely ignores
The vice in the instruction is that it insanity. the defense of All that said instruc- may true, yet accused, tion be if insane at the time killing, guilty Upon would not be of murder. give proper new trial it would be instruction this addition inserted after the second time the word “grudge” appears: prisoner “that sane at killing.” time of the assignment upon
The next of error is based the refusal accused, of the court to sustain the motion of the to dis- charge alleged argument improper because of prosecution counsel who assisted in alleged argument improper attorney for the Attorney Commonwealth. General concedes that arguments improper, were but as the case will be reasons, necessary reversed for other it is not to discuss assignment of error. assignment is no merit to the of error
There custody that the were committed to the of the sheriff having keep taken oath to them to without his first gether. adjournment The record shows that regularly court, committed to cus tody deputies customary of two to whom the oath was jury together, keep administered, to etc. assignment of error The last relates to the refusal contrary it the court to set aside verdict because law and the evidence. to the trial, for a new of the remand the case view pass upon ques- improper the court to would be tion. *11 judgment reversed, and the the lower court
The a for new trial. case remanded
Reversed and remanded. Hudgins, J., concurring. fully in fore-
I concur the conclusion with reached agree going opinion, part with that but do not the trial court committed error which holds that excluding jury Kelley. My rea- in T. service Otho briefly position, are as follows: for this sons felony charged persons are entitled to have All excep- jurors, panel twenty prospective free from panel to entitled From this the Commonowealth is tion. leaving thereby jury four, four and the strike try are officers issue. The ministerial of twelve to only twenty-four names from draw authorized to duty jury of the from this list It is the sheriff list. jurors. only twenty prospective a matter It is summon regular knowledge majority that at the of common officer, sheriff, a ministerial of the trial courts the terms four least fails to summon at term excuses or at each twenty-four persons for are drawn whose names wisely jury the trial authorizes The statute service. persons judge the number to increase in certain cases jurors. prospective may to be summoned as He do this ways: (1) in one of Either in or in two term vacation charged may parties duty with the authorize drawing jurors from the names of the list to increase drawn; or, provisions (2) number under the of sec- to be 1924, chapter 478, page tion as amended Acts jurors, where a sufficient number of free from ex- ception, cannot be had from those and in at- summoned tendance, panel or where the venire has been facias judge quashed, may select from list many persons may cause to be summoned so as neces- be sary complete panel twenty, excep- free from tion, try constitute the the case. Kelley record this case shows that one of persons jury service,
seven summoned excused from so twenty persons that more than were summoned and prospective jurors attendance for the trial of the ac- cused, but record does show which method obtaining trial court used their attendance. All the subject record discloses on the in the fol- is contained lowing excerpt.
“Note: lot When selected and called dire, to the be bar to T. examined their voir Otho Kelley, challenge by attorney without either attorney defendant, Commonwealth or set ground aside and excused as a that the said Kelley busy picking tomatoes, Kel- Otho T. the said *12 ley being competent juror, exception. free from Exception by attorneys
“Note: noted the de- fendant. Carey
“Note: Mr. Milliner reason of the excused fact Dewey that his wife was a second cousin Coard. jurors they Two other excused reason of fact that opposed capital punishment. to Matthews, you “The spoke Court: Mr. to me about excusing you, what trouble? operated
“Mr. Matthews: The truth is I been have on and don’t feel able to serve. excused.
“The Court: You are Exception Mapp: noted. “Mr. * * * Young on was excused as “Note: ground miles from under two Greenbush. that he lived gentlemen up any you made
“The Court: Have opinion expressed to the merits this case? an as Dunham: I “Mr. have. on? that based Court:
“The What acquainted the two I am well “Mr. Dunham: discussed, naturally in the parties, it interested heard case. you heard, would that have
“The Court: What juror? your on oath as effect I am it would. Dunham: afraid
“Mr. are Court: excused. “The You Jury “Note: sworn.” Kelley, majority he opinion holds that because
The service, tomatoes,” exempt “picking was had that he claimed this the record fails disclose but point exemption. clear on the the record is as While might be, immediately it that after the does show court, plead indictment, had began attorneys, presence of to examine the accused stenog jurors prospective voir in their dire. rapher reporting attempt accurately did not the case simply proceedings, but made a record all the note sum marizing the conclusion with the reason therefor. knowledge judges
It is a matter common trial regularly are to excuse men reluctant summoned requests when the are based on substantial service even grounds. only reasonable deduc- It seems me relating from the note to the fact tion to be drawn requested Kelley the court to ex- excused is that grounds judge How did know him on cuse stated. Kelley busy picking he in tomatoes unless some my opinion way to him? that fact communicated juror. excusing no error trial court committed