Bailey v. Com.

• Decision Date: 16 June 1952
• Docket Number: No. 3973,3973
• Citation: 71 S.E.2d 368,193 Va. 814
• Court: Virginia Supreme Court
• Parties: JODIE BAILEY v. COMMONWEALTH OF VIRGINIA. Record

Page 368

71 S.E.2d 368

193 Va. 814

JODIE BAILEY v. COMMONWEALTH OF VIRGINIA.

Record No. 3973.

Supreme Court of Appeals of Virginia

June 16, 1952.

S. W. Tucker and Robert H. Cooley, Jr., for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Bailey, the defendant, stabbed and killed L. P. Brockwell, Sr. He was indicted for murder at the December, 1949, term of the circuit court. On his arraignment on January 3, 1950, he filed a written motion to quash the writ of venire facias on the ground of racial discrimination in the selection of the jurors summoned for his trial, the defendant being a Negro and the deceased a white person. This motion was overruled. He thereupon entered a plea of not guilty, was tried, convicted of first-degree murder and sentenced to life imprisonment. On appeal to this court we held that the evidence was sufficient to support the verdict but that the trial court erred in not receiving proffered evidence that there was discrimination. The judgment of conviction was for that reason reversed and the case remanded for a new trial. Bailey v. Commonwealth, 191 Va. 510, 62 S.E. (2d) 28, decided November 27, 1950.

Upon the calling of his case on April 17, 1951, for retrial, the defendant moved to withdraw his plea of not guilty and to file a plea in abatement to the indictment, but the court overruled his motion and rejected the plea. He then filed a written motion to quash the writ of venire facias on the ground of racial discrimination in the selection of the jurors for this trial, and after hearing the evidence the court overruled that motion. Thereupon a jury was selected, heard the evidence, found the defendant guilty of murder in the first degree, fixed his punishment at life imprisonment, and he was sentenced accordingly.

On this appeal he charges that the court erred in its ruling on his two motions, in refusing to amend the indictment to lower the charge to manslaughter, in giving and refusing instructions, in refusing to declare a mistrial for improper argument by the Commonwealth's attorney, and in refusing to set aside the verdict as contrary to the law and the evidence.

First. The plea in abatement, omitting the formal parts, is copied in the margin. * It was rejected because it was not timely filed. It was conceded that at the former trial the indictment was not challenged in any way. It was further conceded that when the former motion to quash the venire facias was filed the defendant then had full knowledge of the matters alleged in the plea in abatement, and that all the facts were in his possession at the time of the first trial. Under the settled practice of this jurisdiction it was his duty to make his objection known at the first trial, and whether he should be allowed to withdraw his plea of not guilty then entered and file a plea in abatement was within the sound discretion of the trial court.

In Early v. Commonwealth, 86 Va. 921, 11 S.E. 795, in which defendant was sentenced to be hanged, when the case was called for trial the defendant moved to withdraw his plea of not guilty entered at a former term and to enter a plea in abatement on the ground that the grand jury had not been summoned according to law. It was held not error to refuse the request, the court saying:

'By pleading the general issue alone, a defendant has always been understood to waive the right to interpose afterwards a plea in abatement. The settled doctrine, however, is that the judge may permit a pleading to be withdrawn, and another one to be substituted, whenever by so doing he does not violate any positive rule of law or of established practice. But such a discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a merely dilatory or formal defence. 1 Bish. Crim. Proc. (2d ed.), sec. 124.' 86 Va. at p. 924, 11 S.E. at p. 796.

In Curtis v. Commonwealth, 87 Va. 589, 13 S.E. 73, a verdict of first-degree murder was set aside by the trial court. On his retrial the defendant moved to quash the indictment. This court approved the overruling of the motion, saying: '(It) is well settled that objections to the mode of summoning a grand jury, or to the disqualifications of particular jurors, must be made at a preliminary stage of the case, that is, before a plea to the merits; otherwise they will be considered as waived, unless, indeed, the proceeding be void ab initio.' 87 Va. at p. 592, 13 S.E. at p. 74.

It was there said that the defendant, upon his arraignment, had pleaded not guilty, upon which plea alone the trial was had, and when the first verdict was set aside and a new trial awarded, the case was in the same situation as when the first trial began; 'that is to say, all the proceedings subsequent to the joinder of issue on the plea having been set aside, the Commonwealth and the prisoner were at issue on the plea of not guilty;' and to say that the granting of a new trial expunged the plea 'is to assert a proposition not founded in reason, and one that has never been recognized in any jurisdiction where the rules and practice of the common law prevail.' 87 Va. at pp. 593-4, 13 S.E. at p. 74.

The rule announced in those cases has been consistently followed in succeeding cases. Watson v. Commonwealth, 87 Va. 608, 13 S.E. 22; Reed v. Commonwealth, 98 Va. 817, 36 S.E. 399; Pflaster v. Commonwealth 149 Va. 457, 141 S.E. 115; Parris v. Commonwealth, 189 Va. 321, 52 S.E. (2d) 872. And such appears to be the rule generally. Mack v. State, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349; State v. Twine, 211 Iowa 450, 233 N.W. 476; State v. Ritter, 199 N.C. 116, 154 S.E. 62; Anno., 145 A.L.R. 493; Tyson v. State, 146 Tex.Cr.R. 128, 171 S.W. (2d) 496; Robinson v. Commonwealth, 285 Ky. 838, 149 S.W. (2d) 502; 22 C.J.S., Criminal Law, § 429, p. 672; 14 Am. Jur., Criminal Law, § 289, p. 964; 2 Wharton's Crim. Proc., 10 ed., § 1354, p. 1813.

Defendant argues that racial discrimination in the selection of grand jurors is prohibited by the Fourteenth Amendment, as well as by Federal statute, and that the right to object to it at any time cannot be waived. It is not questioned that the defendant had a constitutional right to a fair and impartial grand jury from which members of his race had not been intentionally excluded. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.ed. 839; Bailey v. Commonwealth, 191 Va. 510, 62 S.E. (2d) 28. But that does not mean that there is no limitation of time, mode or circumstance upon his right to object to the grand jury which returned the indictment against him. The right to a proper grand jury is guaranteed to him, but that guaranty does not preclude his acceptance of the grand jury in his particular case as meeting that requirement. Here he knew there was a member of his race on the grand jury; he admits that all the facts were in his possession at the time the case was tried before; notwithstanding, he gave no indication to the court that he questioned the composition of the grand jury, but went to trial on his plea of not guilty, and appealed his conviction to this court still without objection to the indictment. His contention now is that all of that was useless procedure and that he should not have been tried at all. We hold his objection was not timely and that his plea in abatement was too late. To use the language of the Supreme Court in United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.ed. 857, 859, cited in the Curtis Case, supra, to allow such procedure 'would be trifling with justice, and would render criminal proceedings a farce.'

In the Gale Case four persons, otherwise competent, were excluded from the grand jury for causes 'mentioned in section 820 of the Revised Statutes,' but no objection was taken to the indictment on that account until after a plea of not guilty and a conviction. The court said:

'The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived.' 27 L.ed. at p. 858.

The court further said that its discussion as to the time for objecting to the indictment applied with additional force where the objection is not to the disqualification of the jurors actually on the panel 'but to the exclusion or excuse of persons from serving on the panel. * * * No complaint is made that any of the grand jurors who found the indictment were disqualified to serve, or were in any respect improper persons. It is only complained that the court excluded some persons for an improper cause, * * *. But passing by these proper modes of taking the objection, they waited until they had been tried and convicted on a plea of not guilty, and then moved in arrest of judgment. We think they were too late in raising the objection.' 27 L.ed. at p. 859.

In the recent case of Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.ed. 529, decided April 7, 1952, Mr. Justice Frankfurter, dissenting from the affirmance, said of defendant's claim that his conviction lacked fundamental fairness because of misconduct of the district attorney and consequently offended the Due Process Clause of the Fourteenth Amendment: 'The issue was raised after verdict, and the Supreme Court of California might have disposed of the claim by ruling that it had not been made at the stage of the proceeding required by State law.'

There is no constitutional requirement in Virginia that prosecutions for felony be by indictment. The requirement is only statutory and may be waived. Livingston v. Commonwealth, 184 Va. 830, 36 S.E. (2d) 561; Code 1950, § 19-133. If a defendant may legally...