Bowen v. Commonwealth

• Citation: 111 S.E. 131
• Court: Supreme Court of Virginia
• Decision Date: 16 March 1922
• Parties: BOWEN . v. COMMONWEALTH.

111 S.E. 131

BOWEN .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Error to Corporation Court of Buena Vista.

W. R. Bowen was convicted of petit larceny, and he brings error. Affirmed.

John Dabney Smith, of Buena Vista, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst. Atty. Gen., for the Commonwealth.

KELLY, P. The defendant, W. R. Bowen, was arrested and tried by the mayor of the city of Buena Vista upon a warrant charging him with the larceny of certain brass pipes, valves, and other brass articles, of the value of $35, and was sentenced to serve a term of six months on the state convict road force. From that sentence he appealed to the corporation court, where he was tried by a jury, found guilty, and again sentenced to six months' imprisonment.

The sole ground on which we are asked to reverse the judgment is that the defendant was tried by a jury of seven, instead of five, the latter being the number provided for in such a case by section 4927 of the Code.

The record shows that the court impaneled a jury of seven men, "who, being elected, tried and sworn to well and truly say, and a true verdict render, between the commonwealth and the accused according to law and the evidence, " returned the verdict above indicated, and that the defendant moved the court to set the same aside as contrary to the law and the evidence, which motion the court overruled. No grounds whatever for the motion were stated. No exceptions of any kind were noted at the trial. There was no challenge as to any individual juror or as to the jury as a whole. The evidence was not certified, and the foregoing recital contains the substance of the entire record before us.

Section 8 of the Virginia Constitution, so far as material here, provides as follows:

"That in all criminal prosecutions a man hath a right to * * * a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; provided, however, that * * * in a prosecution for an offense not punishable by death, orconfinement in the penitentiary, upon a plea of not guilty, with the consent of the accused, given in person, and of the attorney for the commonwealth, both entered of record, the court, in its discretion, may hear and determine the case, without the intervention of a jury; and, that the General Assembly may provide for the trial of offenses not punishable by death or confinement in the penitentiary, by a justice of the peace, without a jury, preserving in all such cases, the right of the accused to an appeal to and trial by jury in the circuit or corporation court; and may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not punishable by death, or confinement in the penitentiary, and may classify such cases, and prescribe the number of jurors for each class."

Section 4927 of the Code of 1919 provides, among other things, that—

"Seven jurors shall constitute a panel in the trial of misdemeanors, but the jury therefor shall be composed of five."

Section 4895 of the Code provides that—

"No irregularity in any writ of venire facias, or in the drawing, summoning, returning, or impaneling of jurors * * * shall be cause * * * for setting aside a verdict or granting a new trial, unless objection thereto specifically pointed out, was made before the jury was sworn, and unless it appears that such irregularity, or error, * * * was intentional or such as to probably cause injustice to the Commonwealth or to the accused."

In Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676, this court, overruling Miller v. Commonwealth, 88 Va. 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, questioned whether the constitutional right to a jury trial was intended to apply to misdemeanors, but, leaving that question open, expressly decided that article 1, § 10, of the Virginia Constitution (Bill of Rights), adopted in 1869, declaring, like section 8 of the present Constitution, "that a man hath a right to a speedy trial by an impartial jury, " means that the accused has a legal claim to a jury trial— that such is his privilege—but that the presence of a jury in a criminal trial is not thereby made essential to the jurisdiction of the court, and that the right or privilege thus conferred may be waived. Distinguishing the above-cited section of the Virginia Bill of Rights from article 3, § 2, clause 3 of the United States Constitution, and from the Sixth Amendment thereto, Judge Keith, in Brown v. Epps, supra, said:

"The language of our Bill of Rights differs from each and both of these provisions. It does not declare that 'the trial of all crimes shall be by jury'; it does not declare that 'the accused shall enjoy the right to a trial by an impartial jury, ' but its language is 'that a man hath a right to a speedy trial by an impartial jury' that is, he has a legal claim to a trial by a jury. A trial by a jury is his privilege. The existence of the presence of a jury is not made a jurisdictional fact, without which a court is not duly organized for the trial of criminals, as is the case in all courts of the United States."

Both in Miller v. Commonwealth, supra, and Brown v. Epps, supra, it was held that the General Assembly could validly provide for waiver of a jury trial by the accused in a misdemeanor case.

In Schick v. United States, 195 U. S. 65. 72, 24 Sup. Ct. 826, 828, 49 L. Ed. 99, 103 (1 Ann. Cas. 585) Mr. Justice Brewer, delivering the opinion of the court said:

"Where there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy. Authorities in the state courts are in harmony with this thought. In Com. v. Dailey, 12 Cush. 80, the defendant in a misdemeanor case waived his right to a full panel and consented to be tried by eleven jurors, and this action was sustained by the Supreme Court of Massachusetts. Chief Justice Shaw delivering the opinion of the court, said (page 83): 'He may waive any matter of form or substance, excepting only what may relate to the...