Dilworth v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: DANIEL, J.
• Citation: Dilworth v. Commonwealth, 53 Va. 689 (1855)
• Decision Date: 05 March 1855
• Parties: DILWORTH v. THE COMMONWEALTH.

53 Va. 689

DILWORTH v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 5, 1855

1. On a trial for a felony a member of the grand jury which found the indictment against the prisoner, is not a competent juror to try him.

2. If the prisoner does not know, or might not with due diligence have known, that one of the jury was a member of the grand jury which found the indictment against him, until after the jury is impanneled and sworn, he may make the objection to the juror, if made before any of the evidence is introduced.

3. QUÆ RE: If he may not make the objection at any time before the verdict is rendered? And it seems he may.

4. QUÆ RE: If upon such objection being made to a juror it is proper to examine him upon his voir dire as to the circumstances, and the state of his mind and feelings towards the prisoner?

5. The act, Code, ch. 162, § 4, p. 628, only relates to those disabilities created by our statutes; and does not refer to other causes of challenge which exist at common law, and as to which the statutes are silent.

John Dilworth was indicted in the Circuit court of Harrison county, for the murder of Addison Bumbgardner. When the trial came on, William Flanagan was called as a juror, and was sworn and tried on his voir dire; and stated that he had not made up or expressed any opinion as to the guilt or innocence of the prisoner, and proved himself free from exceptions; and was thereupon placed upon the panel of twenty-four. The first day was consumed in obtaining a jury and directly it was impanneled and sworn, and before any testimony was introduced, the court adjourned until the next day.

On the next day, before any testimony was introduced, the prisoner filed his own affidavit and also the affidavit of John R Dawson, the jailor, and moved the court to discharge William Flanagan, one of the jurors, and substitute another in his stead.

The prisoner in his affidavit, stated that after the jury had been impanneled and sworn and the court had adjourned, he was informed that Flanagan, one of the jurors, had been one of the grand jury which found the indictment upon which the prisoner was then about to be tried. That when Flanagan was impanneled and sworn, the prisoner did not know that he had been a member of the grand jury, or he would have struck his name from the panel. The jailor stated that he had informed the prisoner of the fact that Flanagan had been a member of the grand jury that found the indictment against him, after the adjournment of the court on the previous evening. The court thereupon caused Flanagan to be sworn. He stated that he was a member of the grand jury which found the indictment against the prisoner. That they heard the evidence of one witness, and part of the evidence of another; that then the foreman announced that he had heard the evidence in the case before, and that it was not necessary to hear further testimony; and thereupon the indictment was found, the said Flanagan among others, voting for it.

He further stated that he paid very little attention to the testimony, and did not then and had not since formed any opinion of the prisoner's guilt or innocence; and that he had no prejudice or bias for or against the prisoner; that he was wholly indifferent, and had no doubt that he could give the prisoner a fair and impartial trial according to the law and the evidence; that he was governed by what the jurors said as well as what was testified to by the witnesses; that the grand jury had a press of business on hand, and was anxious to dispose of it. And he stated that he had told Dawson that he did not suppose he could be summoned as he was on the grand jury.

When the juror had been examined, the court enquired of the prisoner's counsel how the place of said Flanagan should be supplied, or if he was discharged from the jury, what should or could be done; to which the prisoner's counsel remarked that the commonwealth had had a grand jury, and now had her petit jury, and must remove the difficulty. The court thereupon overruled the motion. And the prisoner excepted.

The jury found the prisoner guilty of murder in the second degree; and fixed the term of his imprisonment in the penitentiary at eight years. And he thereupon filed a plea in arrest of the judgment, on the ground that Flanagan, who was one of the jurors who rendered the verdict, had been one of the grand jury which found the indictment a true bill. The court overruled the plea; and also overruled a motion by the prisoner for a new trial, made on the same ground: And the prisoner again excepted; and applied to this court for a writ of error, which was awarded.

The case was argued by Patton, for the prisoner, and the Attorney General, for the commonwealth. The propositions and authorities relied upon by them, are referred to in the opinion of Judge DANIEL.

DANIEL J.

It is well settled that it is a principal cause of challenge to one called as a juror on a trial for felony, that he was of the grand jury who found the indictment against the prisoner. 21 Vin. Abr. Trial, 253; Coke Lit. 156 b; Herndon v Bradshaw, 4 Bibb's R. 45; Barlow v. The State, 2 Black. R. 114; Hunter v. Matthews, 12 Leigh 228.

The juror Flanagan is in that predicament; and it is urged on behalf of the prisoner, that sentence has been pronounced against him without his ever having enjoyed the right to a trial by a jury free from exception; whilst on behalf of the prosecution it is argued, that the prisoner has not only waived his right of challenge, but that his exception to the juror has also been in fact satisfactorily answered; and that he has no good reason for arraigning the justice of the sentence by which he stands condemned.

The 4th section of ch. 162 of the Code of 1849 provides that no exception shall be allowed against any juror after he is sworn upon the jury, on account of his estate, age or other legal disability. It was, however, conceded in the argument, that this section is designed for the regulation of exceptions founded on the disabilities created by our statutes only; and has no reference to other causes of challenge which exist at common law, but as to which the statutes are silent.

The latter, it is admitted, are still governed by the principles and rules of practice of the common law.

It is insisted, however, by the attorney general, that these principles and rules require all challenges for whatever cause, to be made before the jurors are sworn; and that nothing occurred on the trial of this case of which the prisoner can now be heard to complain: and in support of his position, he has cited Hawkins' Pleas of the Crown; Archbold's Criminal Practice; the cases of State v. Quarrell, and State v. O'Driscoll, 2 Bay's R. 151, 153; Barlow v. The State, 2 Black. R. 114; and also the cases of Jones, Heth, Curran, and others of a like character, decided by our General court.

Hawkins and Archbold, and other text writers on criminal law, do state it as a general rule, that no juror can be challenged, by either side, without consent, after he has been sworn, unless it be for some cause which happened since he was sworn; and I believe the practice which most usually prevails is to require the challenges to be made as the jurors come to the book, to be sworn in chief. And such was the practice previous to the revision of the criminal laws in 1848.

It is true, that in the first of these cases (State v. Quarrell, ) a motion to set aside a verdict on the ground that one of the jurors was an alien, was denied; and that in the cases of State v. O'Driscoll and Barlow v. The State, like motions founded on the fact that some of the petit jurors were on the grand juries that found the bills, met with a similar fate. The same decision was made in the case of Gillespie and others v. The State, 8 Yerg. R. 507; and a like decision was also made in a case of an analogous character by the Supreme court of Connecticut. Quinebaug Bank v. Leavens, 2 Conn. R. 87.

In the two first cited cases it does not appear that there was any affidavit even by the prisoners to show that they were ignorant of the causes of challenge to the jurors, at the time they were sworn; and in the absence of such evidence, the court, I think, very properly held that the prisoners had waived their privilege.

In the case of Gillespie & others v. The State, there was an affidavit of the prisoner of his want of knowledge; but I infer, from some remarks of the judge who delivered the opinion of the court, that it was not supported by other evidence, and that little or no credit was given to it. And in the case of Barlow v. The State, the evidence, instead of showing that the prisoner was ignorant of the fact that two of the jurors had been on the grand jury who found the bill, proved that he had previously known it. The court said, " The defendant does not deny the previous knowledge, but states in his affidavit that he did not recollect the circumstance when the petit jury was impanneled, nor did it occur to him until after the verdict had been returned. The counsel of the defendant knew nothing of the fact until after the verdict had been given." --" The defendant had once known that these men were on the grand jury. The statement of his not recollecting it is insufficient: An affidavit to that effect could never be disproved. This part of the case then presents the question whether the objection, known to the defendant at the time of impanneling the jury, but not made till after the verdict, was good on a motion for a new trial. We think it was not. It was a good cause of challenge; but being known to the party and not mentioned at the proper time, the right was waived."

This case is, I think, no authority for the proposition that a motion for...