Custis v. Commonwealth

• Decision Date: 02 April 1891
• Citation: 87 Va. 589,13 S.E. 73
• Parties: Custis v. Commonwealth.
• Court: Virginia Supreme Court

13 S.E. 73

87 Va. 589

Custis

v.Commonwealth.

Supreme Court of Appeals of Virginia.

April 2, 1891.

Criminal Law —Homicide — Trial—Jury —Evidence —Variance.

1. Where, on indictment for murder, defendant's motion in arrest of judgment is overruled, and on the following day of the term the court, of its own motion, sets the verdict aside, and remands defendant for another trial, he is not entitled to his discharge, on the ground that his motion in arrest of judgment was sustained.

2. Setting aside a verdict and granting a new trial in a criminal case does not expunge the plea of not guilty previously entered, and it is too late for defendant, on the new trial, while the plea is standing, to plead in abatement that the record does not show that a venire facias was issued to summon the grand jury by which the indictment was found.

3. Act Va. Feb. 24, 1890, (Acts 1889-90, p. 79,) requiring the judge of each county and corporation court, at least 10 days before the commencement of every term, to set each criminal case for trial on a certain day, does not apply to the circuit courts.

4. The appearance of 16 of the 20 persons ordered to be summoned from the list furnished by the judge to serve as jurors is sufficient, under Code Va. § 4010, providing that in cases of felony, "where a sufficient number of jurors to constitute a panel of sixteen persons free from exception cannot be had from those summoned, " additional persons may be summoned from the bystanders; and it is not error for the court to refuse to cause the appearance of the four persons originally summoned.

5. Of persons summoned on a venire in a felony case, six, who were found free from exception, were allowed to separate during an adjournment to a future day of the term, being cautioned not to converse about the case, and were subsequently sworn as jurors without being again examined on their voir dire. Held, no error.

6. Pending a murder trial defendant was taken apparently with a fit, and was removed from the court room, the trial being suspended, and examined by physicians, who testified that, in their opinion, he was sane, and merely shamming, though under great mental excitement. After walking in the court-yard he was brought back into court. Held, that the trial was properly resumed.

7. On indictment for murder, a physician testified that he had examined deceased, and thought death resulted from wounds which he found on his head. A witness testified that defendant confessed to him that, with others, he went to deceased's store, and struck him on the head, ana killed him, and that a companion threw a mattress on him and ignited it. He also testified that defendant stated that, after the mattress was fired, he heard deceased groan, but it appeared that defendant was at the time one-third of a mile away, with the wind blowing towards deceased. Held, that the jury were justified in finding that death was caused by the wounds on the head.

8. Proof that deceased died from wounds on the leftside of his head is not a material variance from an allegation that the wounds were on the right side.

Error to circuit court, Norfolk county.

Murdaugh & Marshall, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lewis, P. The prisoner was indicted in the county court of Norfolk county for the murder of Terrcnce L. Waller, and upon his arraignment demanded to be tried in the circuit court of that county. He was thereupon remanded for trial in the circuit court, pursuant to the provisions of section4016 of the Code. At the ensuing term of that court he pleaded not guilty; and, having been put upon his trial, was found guilty by the jury of murder in the first degree. He thereupon moved for a new trial, which motion was overruled. Whereupon he moved in arrest of judgment, which motion also was overruled. But on a subsequent day of the term the court, of its own motion, set aside the verdict, and remanded the prisoner for trial at a special term, to be held on the 24th of April then next ensuing. On the last-mentioned day the prisoner was "again led to the bar. Whereupon he moved that he be discharged, on the ground that his motion in arrest of judgment at the previous term had been sustained, but the motion was overruled; to which ruling he excepted, and this ruling is the subject of the first assignment of error here. The question thus raised is a simple one of fact, to bedetermined by the record, and that shows, as above stated, that the motion in arrest of judgment was overruled. Nothing more upon that point, therefore, need be said.

The prisoner next moved the court to quash the indictment, on the ground that it did not affirmatively appear from the record that a venire facias had been issued to summon the grand jury by which the indictment had been found, and the overruling of this motion is the subject of the second assignment of error, in support of this assignment, Hall's Case, 80 Va. 555, and a number of subsequent decisions of this court have been cited to the effect that a venire is an indispensable process, both at common law and under the statute, to authorize the sheriff or other officer to summon a jury in a felony case, and therefore that the record must affirmatively show that a venire was issued; and these decisions, it is contended, apply as well to the summoning of the grand jury as the petit jury. But this is a mistaken view. It has never been held, either in England or in Virginia, that the award of process to summon a grand jury must affirmatively appear by the record, and there is no principle for so holding. At common law the process for summoning a grand jury was a precept, either in the name of the king, or of two or more justices of the peace, directed to the sheriff. This was anterior to and independent of any action of the court, the object being to have a grand jury in attendance at the commencement of the term. The court, however, bad power to have a grand jury summoned during the term, as occasion might require. Burton's Case, 4 Leigh, 645. By statute, in Virginia, until a comparatively recent period, the sheriff was required, ex officio, to summon a grand jury to attend to the first day of every term prescribed bylaw, as a substitute for the precept above mentioned. And now the statute (Code, § 3976) provides that a venire facias to summon a regular grand jury shall be issued by the clerk prior to the commencement of each term at which such grand jury is required. It by no means follows, however, because a venire is now the proper process to summon as well a grand jury as a petit jury, that the same strictness is required in each case. On the contrary, it is well settled that exceptions to the mode of summoning a grand jury, or to the disqualifications of particular grand 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. " After the general issue, or any plea in bar, " says Bishop, "it is too late to plead in abatement, except on leave to withdraw the former, because the plea in bar admits whatever is ground only of abatement. " 1 Bish. Crim. Proc. (3d Ed.) § 756. This subject was very fully considered in U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. Rep. 1, in which case objection was made for the first time after verdict, on the ground of the alleged wrongful exclusion of four persons from the grand jury, and it was held that the objection came too late. The rule was recognized that where the whole proceeding of forming the panel is void, as where the jury is not a jury of the court or term in which the indictment is found, or has been selected by persons having no authority whatever to select them, objection may be taken at any time. But where the objection, it was said, was founded upon an irregularity in summoning the panel, or upon the disqualification of particular jurors, it must be taken before pleading in bar. It would be trifling with justice, it was added, and would render criminal proceedings a farce, if the rule were otherwise. In State v. Carver, 49 Me. 588, the defendant, after a general plea of guilty, moved in arrest of judgment, on the ground that the grand...