Cluverius v. Commonwealth

• Decision Date: 06 May 1886
• Citation: 81 Va. 787
• Parties: CLUVERIUS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

81 Va. 787

CLUVERIUS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 6, 1886

Writ of error to judgment of Hustings court of the city of Richmond, rendered 19th June, 1885, against Thomas J Cluverius, the plaintiff in error, who was indicted, tried convicted, and sentenced to be hanged for the murder of Fannie Lillian Madison, on the 13th day of March, 1885 within the jurisdiction of the said city.

The opinion of the court fully states the case.

W W. & B. T. Crump, H. R. Pollard, and A. B. Evans, for the plaintiff in error.

R. A. Ayres, attorney-general, C. V. Meredith, and W. R. Aylett, for the Commonwealth.

OPINION

FAUNTLEROY, J.

The voluminous record in this case presents to the careful, patient and anxious scrutiny of this court, the determination of the legality and justice of the proceeding in the case in the trial court--that is, the question, both, whether the Commonwealth produced upon the trial before the jury, evidence, competent and sufficient, to warrant the verdict of the jury; and whether the prisoner, from the inception to the end of his trial, has had the benefit of all the sanctions and safeguards thrown around him, and, indeed, around the lives and the liberties of all her citizens, by the criminal jurisprudence of the State?

In this connection it is appropriate to remark the fact, that, from the beginning to the end of the protracted and painful trial of this case in the said Hustings court, extending through thirty days, and embracing so many intricate questions of law and fact, there are no exceptions filed, either to the instructions given by the court to the jury, or to the conduct of the jury, or of the officers of the court.

The record shows that, during the said trial, eight bills of exceptions to the rulings of the court were taken by the prisoner; and, also, that a motion in arrest of judgment, for errors manifest on the record, was made by the prisoner, and overruled by the court; and the said rulings of the court, as shown in the several bills of exceptions, and its ruling upon his motion in arrest of judgment, are assigned as errors.

Before we proceed to consider these assignments of error and the grounds of error assigned in the record, we must consider the question raised and relied on here by the learned counsel for the prisoner, in their printed and oral argument at the bar of this court, viz: " That the Hustings court had no authority to hold its session; and hence had no jurisdiction over this case at the time the verdict was rendered and sentence pronounced."

The record shows that the accused was arraigned on the 5th day of May, 1885, and, at the same session of the court, continued by adjournment from day to day, the case was submitted to the jury on the 4th day of June; on which day they found the accused guilty.

It is insisted by the learned counsel for the prisoner, " that the regular monthly term of the Hustings court, for the month of May, commenced on Monday, the 4th day of May, and expired on Saturday, the 30th day of May--the following Monday being the 1st day of June; and, consequently, that all proceedings thereafter had, are null and void." By Article VI., section fourteen of the Constitution of Virginia, the judges of the corporation or hustings courts are provided for, " who shall hold a corporation or hustings court of said city or town, as often and as many days in each month as may be prescribed by law."

By the twenty-sixth section of chapter 154 of the Code of 1873, it is provided, that " there shall be a term of the said Hustings court (of the city of Richmond) for each month in the year, except the month of August, commencing on the first Monday in the month, and continuing so long as the business before the court may require. "

By the thirty-sixth section of this chapter it is provided, " the judge of every such corporation court may, from time to time, change the day for the commencement of the terms thereof, or any of them," & c. See also Code 1873, chapter 155, section eighteen. The judge of the Hustings court entered an order in this cause postponing the commencement of the June term of the court from the first Monday to the fourth Monday; and then continued the May term, by adjournment from day to day, after the first Monday in June, " so long as the business before the court required."

In Cahoon's Case, 21 Gratt. 822, this Court, in construing the fourteenth section of the VI. Article of the Constitution of Virginia, says: " The words ‘ as many days in each month as may be prescribed by law,’ in that section, do not refer to the calendar month in which a term may commence, but to the judicial month, commencing from the day in one calendar month, and continuing to the day in the next calendar month fixed by law for the commencement of the monthly term of the court."

The record shows that the monthly term of the June term was changed, by the legal order of the judge, to begin on the fourth Monday, instead of the first Monday in June; and we are of opinion that he had the legal right, and was in duty bound, to continue the May term, from day to day, into the month of June, so long as the business before the court required; and, as in this case, the record shows, was indispensably requisite for the conduct of the trial of the prisoner, and to prevent a failure of the ends of justice.

The first bill of exceptions alleges error in the decision of the hustings court upon the challenge for cause by the Commonwealth, of the venireman, R. W. Larke, in sustaining the said challenge and discharging the said Larke from service on the jury, after he had been examined by the court upon his voir dire and accepted as a juror.

After the said Larke had been examined and accepted by the court as a juror, he was challenged by the Commonwealth, on the ground that he had, before being sworn, stated " that he under no circumstances would hang any man upon circumstantial evidence." The information upon which the challenge was based, came to the knowledge of the attorneys for the Commonwealth after the said Larke had been so accepted. The Commonwealth introduced two witnesses, J. T. Ford and W. A. Boswell, to support its challenge.

J. T. Ford testified as to where the statement was made by Larke, and stated that W. A. Boswell and others were present; and he then said: " We were talking about this case. I said that I could not serve, as I had formed an opinion, or made up my mind. Mr. Larke asked me how I had formed my opinion. And I told him from what I had seen in the newspapers. He said I had no right to form an opinion upon that. I said that was true, but a man could not help forming an opinion after he had read about the evidence. Mr. Larke then said, that the evidence published was ‘ nothing but circumstantial evidence. ’ I said, yes, but men had been hung on circumstantial evidence. He said, well, ‘ I would not hang any man on circumstantial evidence. ’ He told us of several cases to show that no man ought to be hung on circumstantial evidence. I understood him to refer to circumstantial evidence generally; and that he would, in no case, hang a man upon circumstantial evidence."

William A. Boswell testified: " They were discussing this case, and talking generally about crime. Mr. Larke mentioned several cases of circumstantial evidence, and said that he would not, under any circumstances, hang a man on circumstantial evidence. He spoke in a general way, & c., & c. I didn't understand him to refer particularly to this case."

The challenged juror, Larke, then stated: " We got to talking about circumstantial evidence, and I narrated some cases to show the danger of convicting a man on circumstantial evidence. I may have made the remark, as stated by Boswell and Ford; and if they say so, I have no doubt I did, for they remember, perhaps, better what I said than I do. I can't remember positively the words. I spoke in a general way, without reference to any particular case. I meant by what I said that a man ought to be very slow and cautious in convicting a man on circumstantial evidence. If this case presented an unbroken chain of circumstantial evidence, fully proved, I would convict him-- if I was convinced. I don't remember having said that I would under no circumstances hang a man on circumstantial evidence. I didn't intend to say I wouldn't convict a man in any case of circumstantial evidence, but would be very slow and cautious in so doing."

Mr. Larke then said that he was over sixty years of age: that he had not thought of it when examined on his voir dire; that, if not too late, he would claim, and did claim, his legal exemption.

In Montague's Case, 10 Gratt. 767, this Court announced it right to examine the action of the lower court on a question of challenge to a juror; but said: " In all cases great weight is justly due to the opinion of a court before whom the jurors are questioned and examined," & c. The Supreme Court of Texas, in Mason v. The State, 15 Tex.App. 534, say: " We cannot say that in this action of the court there was any error. It was the duty of the court to see that a jury was impanelled composed of men who were free from all bias for or prejudice against the defendant--who were impartial towards either the State or the defendant. In determining as to the fitness of a juror, the question is largely one of discretion with the trial-judge. He has the proposed juror before him; observes his manner of answering questions, his appearance, and many other indications which cannot be brought before this court; and hence the trial-judge is in a much better condition to pass upon the fitness of the individual to serve as a juror in the case, than this court can be from the record alone. Such being the case, ...