Clore v. Commonwealth

• Decision Date: 12 December 1851
• Citation: 49 Va. 606
• Parties: CLORE'S Case.
• Court: Virginia Supreme Court

49 Va. 606

CLORE'S Case.

General Court of Virginia.

December 12, 1851

(Absent Field, J.^[a1])

1. After a prisoner has been tried by an examining Court and remanded for further trial before the Circuit court, and an indictment has been found against him, it is too late to plead in abatement that, or move to quash the indictment because, there were irregularities in his examination before the committing magistrate.

2. If it may be fairly understood from the record of the examining Court that the crime for which the prisoner is indicted is the offence for which he was examined that is sufficient.

3. QUÆ RE. If the setting aside a person called upon the venire, on the motion of the attorney for the Commonwealth, is a ground of exception by the prisoner.

4. Upon a trial for murder a venireman when called, states that he has conscientious scruples about the propriety of capital punishment, and is opposed to it; and being asked by the Commonwealth's attorney, whether if the testimony in the cause proved the prisoner to be guilty of murder in the first degree, he would convict him of it, replies, I do not know. He is properly challenged for cause by the attorney, and set aside by the Court.

5. A venireman when called stated, " That he had not heard any of the evidence nor had he heard any report of it from those who had heard it; but from the rumour of the neighbourhood he had formed an opinion which was at the time he spoke existing on his mind, and which he should stick to unless the evidence should turn out to be different from what rumour had reported it to be. That he had no prejudice nor partiality for or against the prisoner, and believed he could give him a fair and impartial trial according to the evidence that should be given in." He is a competent juror, and challenge of him for cause by the prisoner, was properly overruled.

In the Circuit court of Madison county at its May term 1851, Edmund Clore was indicted for the murder of Thomas Carpenter. At the same term of the Court he offered two pleas in abatement. In the first he alleged that he was committed to prison by Thomas A. Gordon Esq. a justice of the peace for the county of Madison, without any enquiry or examination into the truth of the offence wherewith he was charged or for which he was committed. In the second, he alleged that the offence wherewith he stood charged was never examined into by a justice of the peace in his presence. The Court rejected his pleas.

The prisoner then moved the Court to quash the indictment in consequence of the same irregularity of proceeding before the committing magistrate as set forth in the pleas in abatement and because the prisoner had not been duly examined before a Court of examination upon the charge of murder set forth in the indictment. And he furthermore moved the Court, in the event of refusing to quash the indictment, to defer all further proceedings therein until the prisoner should be regularly committed for examination by a justice of the peace of Madison county, upon the charge of murder set forth in the indictment, and should be duly examined therefor by the proper Court of examination and remanded to this Court for trial. Upon this motion the record of the examining Court was inspected by the Court. This record contains the warrant of the justice to arrest the prisoner for the murder of Thomas Carpenter; and the mittimus of the same justice committing the prisoner to the jail of the county to be examined for the same murder. The record further states, that Edmund Clore who stands charged with the murder of Thomas Carpenter, was brought to the bar of the Court in custody & c., that witnesses were sworn and examined on the part of the Commonwealth, that the arguments of counsel were heard. And then proceeds, " On consideration whereof it appears to the Court that a felony has been committed, and that there is probable cause to charge the accused therewith the said Edmund Clore is remanded for trial in the Circuit court of this county; and he is remanded to the jail of this county there to remain till the sitting of said Circuit court." The Court overruled the motions. To the several opinions of the Court, 1st. In rejecting the said pleas; 2d. In refusing to quash the said indictment; 3d. In refusing to defer all further proceedings at present upon said indictment, the prisoner excepted.

Upon the trial of the case James W. Twyman, one of the venire, being called and sworn stated, " that he had not heard any of the evidence, nor any report of it, but from what he had heard spoken of the case in the neighbourhood, he had formed an opinion to a certain extent. The Court asked him if there was partiality or prejudice on his mind for or against the prisoner; he replied that he could not say there was any, but if any it was in favour of the prisoner."

" Upon further interrogation by the attorney for the Commonwealth the venireman stated, that he had conscientious scruples about the propriety of capital punishment, and was opposed to it. He was then asked by the attorney for the Commonwealth, whether if the testimony in the cause proved the prisoner to be guilty of murder in the first degree he would convict him of it. He replied that he did not know." He was thereupon challenged by the attorney for the Commonwealth for cause, and the challenge was sustained by the Court. To which the prisoner excepted.

Another venireman, Henry Huffman, being called and sworn stated, " that he had not heard any of the evidence, nor had he heard any report of it from those who had heard it; but from the rumour of the neighbourhood he had formed an opinion which was now existing upon his mind, and which he should stick to, unless the evidence should turn out to be different from what rumour had reported it to be. That he had no prejudice nor partiality for or against the prisoner, and believed he could give him a fair and impartial trial according to the evidence that should be given in." The juror was objected to by the prisoner for cause, but the objection was overruled by the Court; and the prisoner again excepted.

The jury found the prisoner guilty of murder in the first degree; when he moved the Court to set the verdict aside, and grant him a new trial; but the Court overruled the motion; and having spread the facts upon the record, sentenced the prisoner to be hung. Whereupon he applied to this Court for a writ of error: and in his petition stated as ground of error:

1st. The rejection by the Circuit court of both and each of his pleas in abatement.

2d. The refusal of the Court to quash the indictment upon the grounds stated in his motion.

3d. The refusal to defer proceedings upon the indictment.

4th. The Court's setting aside as a juror James W. Twyman.

5th. The refusal of the Court to set aside as a juror Henry Huffman.

6th. The refusal of the Court to set aside the verdict and award a new trial.

The facts spread upon the record are not stated here, because they do not present a case which can be of any importance in defining what constitutes murder in the first degree.

William Green, for the prisoner.

OPINION

LOMAX, J.

The three first grounds of error alleged in the petition of the prisoner may be considered together. They are,

1st. The rejection of the two pleas in abatement that were tendered by the prisoner.

2d. The refusal of the Court to quash, upon motion, the indictment, upon grounds, the same that are stated in the pleas in abatement, with an additional ground, that the prisoner had not been duly examined before a Court of examination upon the charge of murder set forth in the indictment.

3d. The refusal of the Court to defer proceedings upon the indictment, in the event of the refusal to quash, till there should be a regular commitment of the prisoner before a justice and a due examination before the proper Court of examination.

The objection urged in this defence upon the motion to quash, because the prisoner had not been duly examined before an examining Court, is at once disposed of by reference to the record of the proceedings of the examining Court, which was submitted to the inspection of the Court, and forms a part of the record in the case. It is stated in the former, that " Edmund Clore who stands charged with the murder of Thomas Carpenter was brought to the bar in custody & c. & c." Now although in the final sentence of the examining Court he is not remanded for trial of the said murder, yet the judgment is sufficiently certain, when it is therein stated that witnesses had been examined and the arguments of counsel heard, upon consideration whereof, that it appeared to the Court that a felony had been committed, and that there was probable cause to charge the accused therewith; and that the said Edmund Clore be remanded for trial & c. The felony can fairly be understood only to have reference to the murder, wherewith it was before stated he had been charged, and upon which charge the examination had been held.

The matters embraced in the pleas, which were the same matters taken as grounds for quashing the indictment, besides that above noticed, were irregularities alleged to have been committed by the justice of the peace before awarding the warrant of commitment. No precedent has been referred to for sustaining either a plea in abatement or a motion to quash upon the ground of such irregularities in the initiatory proceedings of the justice, which are designed merely to ascertain that there is a degree of suspicion against the accused, requiring that he should be held in custody until a more solemn examination can be had as to the probabilities of the charge, and a trial had of his guilt or innocence. Whatever inconveniences he may complain of as to the examination, or...