Thompson v. Commonwealth

• Decision Date: 17 December 1851
• Citation: 49 Va. 637
• Parties: THOMPSON v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

49 Va. 637

THOMPSON v. THE COMMONWEALTH.

General Court of Virginia.

December 17, 1851

1. After-discovered evidence, in order to afford a proper ground for a new trial, must be such as reasonable diligence on the part of the party offering it, could not have secured at the former trial; must be material in its object, and not merely cumulative and corroborative or collateral; and must be such as ought to be decisive, and productive, on another trial, of an opposite result on the merits.

2. Where the sole object and purpose of the new evidence is to discredit a witness on the opposite side, the general rule is, subject to rare exceptions, to refuse a new trial.

3. An objection to a venireman, that he is not qualified according to law, comes too late after he is sworn to try the issue.

4. A juror called by the prisoner as a witness, states that on a certain morning during the progress of the trial, before the rest of the jury had risen, he rose, dressed himself and went down stairs to the pavement before the door of the hotel where the jury were lodged for the night, for the purpose of meeting with a passer-by to send a message to his family; and after remaining there about five minutes and seeing no one passing he returned to the rest of the jury. HELD: That the only proof of separation of the jury being that of the juror the prisoner's witness, who negatives all abuse tampering or improper influence, the act of the juror is not sufficient grounds for setting aside the verdict and granting a new trial.

5. In the progress of a trial which lasts several days, upon the adjournment of the Court at night, the jury are committed to the sheriff to be kept until next day. The most convenient and suitable accommodation which can be provided for the jury is in the third story of a large hotel, where they are placed in five different rooms opening upon a common passage which communicates with the street below by flights of stairs, the doors of their chambers being unlocked during the night, the jurors being unwilling to have them locked from apprehension of fire during the night, and there being no doors or other fastenings at either end of the passage. HELD: This is not a separation of the jury, for which the prisoner is entitled to a new trial.

6. In the morning before the Court meets, the jury are walking out accompanied by the sheriff, for relaxation and exercise, and pass the boundary line separating the county in which the trial is progressing from an adjoining county, and remain in the adjoining county a few minutes, but there is no separation, conversation or communication with any one by any of the jurors. HELD: This is not a separation of the jury for which the prisoner is entitled to a new trial.

7. A jury in a criminal trial concur in opinion as to the guilt of the prisoner, but differ as to the length of time for which he should be sentenced to the penitentiary; and they agree that each one shall state the time for which he will send him to the penitentiary and that the aggregate of these periods divided by twelve shall be the verdict. After it is done they strike off the odd months and all agree to the verdict understanding what it is. HELD: This is not misbehaviour in the jury for which the verdict will be set aside, and a new trial awarded.

8. It is not misbehaviour in a juror between the adjournment of the Court in the evening and its meeting next morning, to drink spirituous liquors in moderation.

9. A medical witness for the Commonwealth being accidentally present at the hotel when the jury are brought there by the sheriff to be lodged for the night, invites the jury in the presence of the sheriff to drink with him, and some of them accept the invitation. The act was inadvertent, but intended only as an act of courtesy, and it was all in the presence of the sheriff. This is not sufficient to set aside the verdict and award a new trial.

At the April term for 1851 of the Circuit court of Henrico county Nicholas O. Thompson was indicted for the murder of his wife Lucy Ann Thompson. He was tried for this offence at the same term of the Court, and was found guilty of murder in the second degree; and the period of his confinement in the penitentiary was fixed by the jury at six years.

After the verdict was rendered the prisoner moved the Court for a new trial, upon various grounds founded on the conduct of the jury during the trial. These, and the facts on which they are based, are all stated by the Judge in delivering the opinion of the Court. The Court below refused to grant the new trial and rendered a judgment upon the verdict. And thereupon the prisoner applied to this Court for a writ of error, which was awarded.

Cannon, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

THOMPSON, J.

The prisoner was indicted for the murder of his wife, in the Circuit court of law for the county of Henrico, on the 17th of April 1851. The jury empanneled and sworn for his trial found him guilty of murder in the second degree, and by their verdict assessed the term of his imprisonment in the public jail and penitentiary at six years. He thereupon moved the Court to set aside the verdict and grant him a new trial. His motion was overruled; and judgment rendered on the verdict; and he took a bill of exceptions to the opinion and judgment of the Court overruling his motion. The bill of exceptions sealed by the Judge sets forth the evidence offered in support of the motion, consisting of ex parte affidavits and examinations in open Court of five of the jurors who tried the cause, the two deputy sheriffs who had charge of the jury, and of other witnesses, together with a certificate by the Judge, of all the facts proved on the trial pertinent to the question of guilt or innocence, as well as all collateral facts supposed to have a bearing on the motion for a new trial. At the last term of the Court a writ of error was awarded on the petition of the prisoner, which has been elaborately argued at this; and the questions presented for adjudication carefully and maturely considered: And the result is a unanimous opinion of this Court, that there is no error in the judgment of the Circuit court. We proceed to state the grounds of that opinion as concisely as the number and importance of the points involved in our decision will permit.

The error assigned is, the refusal of the Circuit court to award a new trial. It does not appear from the record, upon what grounds the new trial was asked in the Court below: the grounds and reasons stated in the prisoner's petition and assignment of errors, are: 1st. " That additional evidence had been discovered since the trial which tended to shew that the witness for the Commonwealth upon whose testimony the prosecution rested, was unworthy of credit or belief. 2d. Upon the ground that the venire facias which issued in this case was improperly returned and executed: two or more of the said venire not being qualified as the law requires. 3d. That there was irregularity in the conduct of the jury who tried the case, in this, that they separated after retiring from the bar and before the rendition of their verdict, and escaped from the custody of the sheriffs who had them in charge, and conversed with bystanders and persons not members of said jury. 4th. That there was misconduct of the said jury in this, that after retiring from the bar to consider of their verdict they the said jury founded their verdict, not upon any principles known to or recognized by the law, but upon an arbitrary arithmetical calculation or process which was equivalent to the casting of lots, and to the result of which the said jury first bound themselves by a precedent agreement." To these the prisoner's counsel suggested, ore tenus at the bar, additional specifications of irregularity and misconduct in the jury, that is to say: 1st, misbehaviour or misconduct in partaking of ardent spirits at all during the time they were enclosed and charged with the case of the prisoner; and the more especially in partaking of spirits furnished as a treat by Doctor L. R. Waring, a professional witness of the Commonwealth; and 2dly, that the visit of the jury on the morning of the 19th April, in company with the deputy sheriffs, their keepers, to the county of Chesterfield amounted in contemplation of law, to a discharge or escape of the whole jury, or if not, that going out of their county with the jury, if it did not put an end to the duties, powers and functions of the deputies in relation to the care and custody of the jury, at least suspended them for the time being; so that for the period of time during which the jurors remained in the county of Chesterfield they were under the care and in the keeping of unsworn officers.

Upon the first and second grounds stated as sufficient causes for setting aside the verdict, but little need be said. As to the first, it is well settled upon reason and authority both in civil and criminal cases, that after-discovered evidence in order to afford proper ground for a new trial, must be such as reasonable diligence on the part of the party offering it could not have secured at the former trial: must be material in its object, and not merely cumulative and corroborative or collateral; and must be such as ought to be decisive, and productive, on another trial, of an opposite result on the merits. And furthermore, when the sole object and purpose of the new evidence is to discredit a witness on the opposite side, the general rule is, subject to rare exceptions, to refuse a new trial. These rules are for obvious reasons applied with even more stringency to criminal than civil cases. This case is wanting in most if not all of these pre-requisites of a new trial, and is...