Commonwealth v. Cherry

• Decision Date: 01 January 1815
• Citation: 4 Va. 20
• Parties: The Commonwealth v. William Cherry
• Court: Virginia Supreme Court

4 Va. 20

The Commonwealth v. William Cherry

Supreme Court of Virginia

January 1, 1815

The defendant was presented by the Grand Jury of the corporation of Winchester for unlawful gaming: which was removed by consent of the Attorney for the Commonwealth and the defendant by Certiorari to the Superior Court of Law for Frederick county. Before the defendant pleaded to the Presentment, the parties agreed to a statement of facts, the object of which was to obtain from the Court, a decision whether the Presentment was bad or not. The main facts agreed, were, that Edward Slater, one of the Grand Jurors was a native born subject of Great Britain; that he removed to the United States in 1784, and to Virginia in 1786; that he married in Virginia; that he held real estate by deed in fee simple in Virginia; that he for many years served as a Constable, as a Common-Councilman in Winchester, and frequently on Grand Juries in the Hustings Court there, and in the District Court of Winchester. There was no fact agreed, that he had ever naturalized as a citizen. The Superior Court, on this statement, adjourned to the General Court, these questions: 1. Was the said Edward Slater a good and lawful Grand Juror? 2. Is the said Presentment a good and legal one?

OPINION

White J.

The first question intended to be raised, namely, whether Edward Slater was a citizen, is supposed to be too clear to require discussion. The great question in the case is, whether this can be taken advantage of after Indictment found.

Let it be remembered that this is not merely the case of a prosecution against a person charged with gaming, in which there is not much danger of a prosecution being turned into persecution; nor is it merely a question whether an Indictment found by a man of good character, but not a citizen, can, for that exception, be abated? No! the principle we are now called on to decide, extends itself much further. The authority produced, and the reasoning offered in support of the Indictment, shew that it embraces every species of offence for which an Indictment can be found, from the most trifling misdemeanor up to murder, and high treason. The matter submitted to the consideration of the Court is in substance this: If an Indictment for any of those crimes even the most atrocious, should be found by Indictors, who, or either of whom, are men convicted of the most infamous offences, outlawed for treason, or for felony, or the subjects of a foreign nation actually at war with us, or if in the absence of the accused, they, or some of them, by corruption and deceit, by their own nomination, or by the nomination of some other wicked and malicious person, (as was Scarlet's case, ^[a] had been put upon the Grand Jury, shall the accused thus basely prosecuted by infamous men, be compelled to hold up his hand at the bar, and submit to the expense, trouble, and infamy of a public trial? or, shall he be permitted to come forward, and shew at once, that these men are by law declared to be unfit, disqualified and incapable of preferring such an accusation? Surely under the first impressions made upon our reason, and common sense of justice, it would seem impossible to deny his right to do the latter. No man will say that it is not essential to the due administration of justice in criminal cases, to exclude from our accusing tribunals, as well as all others, all descriptions of persons who are deemed either incompetent, or unworthy to be trusted with their functions. But in vain shall the law do this, if the persons thus excluded may, by the carelessness of the returning officer, their own corrupt act, or otherwise, be obtruded upon them in defiance of the Law; and if such obtrusion shall make their acts done, not only without legal authority, but against the prohibition of the Law, binding upon all whom they may accuse, although not present, and therefore utterly incapable of objecting at the time. But it is said the law is otherwise written, and however absurd, cruel, or unjust it may be, the Conrt are bound by it. But surely, before the Court will suffer itself to be driven into this palpable act of injustice, it will require some plain and respectable authority, to be produced in support of this dogma.

An attempt has been made to support it by authority, and for that purpose the Statute of 11 Henry 4, (not now in force in this State,) and Lord Coke's Commentary on it, ^[b] have been introduced: from which it has been reasoned thus: if the party accused, could, by the Common Law, have been admitted for this reason, to quash an Indictment by plea, then was the Statute unnecessary; and the decision mentioned under the Nota lector, in p. 33, would not have been " according to the said Act," but at Common Law. But this Statute has gone further than the Common Law; for by it such Indictments could only be quashed upon plea, but Lord Coke says expressly, that the Statute has made them absolutely void, and that the Court may quash them ex-officio, so that this is a sufficient reason for passing the Statute; to aid and fortify the Common Law. But, if this reasoning stood upon the footing on which those that use it have placed it, it would conclude nothing. Every one knows that it is common in England, in cases where doubts are entertained respecting the existing Law, to pass declaratory Acts, and to proceed under those Acts, although they have not altered the old Law a tittle And Lord Coke, in his Commentary on this very Act, does say, that it is in many respects, at least, declaratory of the Common Law. So that although that Statute was passed, and although the Indictment spoken of in the Nota, should have been avoided by plea after that Act, and according to it, it does not follow that the same plea could not have been pleaded at the Common Law.

But it is believed, that it can be demonstrated that when Lord Coke says that decision was made " according to the Statute," he means merely that it was made in accordance with the spirit of it, and not that it was upon its authority only, and was not...