Doyle v. Commonwealth

• Decision Date: 13 March 1902
• Court: Virginia Supreme Court
• Parties: DOYLE v. COMMONWEALTH.

40 S.E. 925

100 Va. 808

DOYLE

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 13, 1902.

CRIMINAL LAW-ASSAULT AND BATTERY—JURY — WAIVER OF CHALLENGE — RELATIONSHIP OF JUROR TO PROSECUTING WITNESS— EXCESSIVE FINES — TRIAL — APPLAUSE OF SPECTATORS—EVIDENCE—SUFFICIENCY.

1. The fact that the uncle of a juror was a brother-in-law of the uncle by marriage of the prosecuting witness does not show a relationship between the juror and prosecuting witness sufficient to disqualify the former.

2. Where defendant in a prosecution for felony challenges a juror, and the challenge is sustained, but afterwards withdrawn, anil the juror retained, it is a waiver by defendant of the objection to the juror.

3. Where the court, authorized by Acts 1869-1900, p. 882. to punish disorderly conduct in the trial of a case, promptly rebukes applause called forth in a criminal case by a witness for the state and by remarks of the prosecuting attorney, and threatens to clear the court room, and places police officers in the rear of the room to prevent a recurrence of such demonstrations, a judgment of conviction will not be reversed by reason of such demonstrations.

4. A fine of $1,000 for an assault and battery on a young woman is not so excessive as to be repugnant to the clause of the bill of rights prohibiting the imposition of excessive fines.

5. Evidence of a prosecuting witness examined, and held to show an indecent assault sufficient to authorize a conviction for assault and battery.

Cardwell, J., dissenting.

Appeal from corporation court of city of Lynchburg.

One Doyle was convicted of assault and battery, and he appeals. Affirmed.

Lee & Howard, for plaintiff in error.

The Attorney General, for the Commonwealth.

KEITH, P. Plaintiff in error was indicted in the corporation court of the city of Lynchburg for assaulting Maggie L. Coomes with attempt to commit rape. The jury found him not guilty of this charge, but guilty of assault and battery, and fixed his punishment at one year's imprisonment in jail and a fine of $1,000. The prisoner moved to set this verdict aside, which the corporation court refused to do, and from this judgment the case is before us upon a writ of error.

When the Jury were being selected, T. A. Jennings, one of the panel, stated upon his voir dire that he had formed and expressed an opinion in the case; that it was based upon newspaper accounts and current reports; that at the time of his examination it was quite a decided opinion, but that he believed he could fairly and impartially decide the case according to the evidence adduced at the trial. Upon cross-examination he stated that his mind was "made up from the reports I have heard and read, and it would take evidence to change it." Thereupon counsel for plaintiff in error objected to Jennings as a juror, and the court sustained the objection, "but before said Jennings retired from the panel counsel for prisoner withdrew their exception and he was elected as a juror." Upon motion for a new trial counsel filed the affidavit of one Percival that shortly after the offense was committed he heard Jennings discussing the matter, and that he said, among other things, that "the severest treatment possible would be too good for Doyle."

The affidavit of one Robert P. Jennings was also filed, who swears that he is "the uncle of T. A. Jennings, who was one of the jurors who tried and rendered the verdict in the case of commonwealth against Edward J. Doyle at the June term of the corporation court of the city of Lynchburg (he being the son of my brother); that Mittie Lee, a sister of Mrs. J. R. Coomes, the mother of the prosecutrix, Maggie L. Coomes, married Joel W. Jennings; that Tiny Jennings, a sister of the said Joel W. Jennings, married me, and is now my wife; and that the residence of all of said parties has been or is in the same city, Lynchburg."

We have copied this affidavit In full, because in no other terms are we able to state the supposed relationship by affinity between Maggie L. Coomes, upon whom the assault is alleged to have been made,-and T. A. Jennings, the juror, and because we thought the affidavit itself the strongest possible refutation of the contention that the juror was disqualified by reason of the facts deposed to by Robert P. Jennings, or that those facts could be considered as in any degree Influencing our conclusion.

"Affinity is the relation contracted by marriage between a husband and his wife's kindred and between a wife and her husband's kindred, in contradistinction from consanguinity, or relation by blood. A number of authorities define affinity as the connection which arises from marriage between the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband, —or, in other words, they hold that it does not include persons related to the spouse simply by affinity; and it would seem that this definition is supported by the weight of authority." 1 Am. & Eng. Enc. Law (2d Ed.) p. 911.

Consequently, it is held in Johnson v. Rich ardson, 52 Tex. 482: "That the sister and niece of a juror are the wives of two brothers of a party to a suit constitutes no ground of disqualification."

In Moses v. State, 11 Humph. 232: Upon a trial for murder a juror stated that the sons of his wife by a former marriage were second cousins of the deceased, and this was held not to disqualify him.

"A juror whose brother is joined In marriage with a sister of one of the parties Is not disqualified to sit in the trial." Chase v. Jennings, ' 38 Me. 44.

In Kirby v. State, 89 Ala. 09, 8 South. 110, it appears that the juror, Bryant, being a cousin of the deceased, was related by affinity to the mother of the deceased, but bore no relation to deceased himself, and was a competent juror.

In Jacques v. Com., 10 Grat 690, on a trial for arson, it was held that the nephew of the deceased wife of the person whose house was burned, if she left children, is an incompetent juror; and, If she left no Issue, that was a fact for the prosecution to show, and, not being shown, the objection was valid.

It Is obvious that the case under consideration does not come within the terms of the definition as to what constitutes relationship by affinity. The juror himself says In his counter affidavit that he was utterly unmindful of the fact; and he could hardly have been otherwise, for the connection is so shadowy that it eludes all effort to define it, and is too unsubstantial to be treated as exercising any possible Influence upon a juror's conduct When the objection to Jennings as a juror was withdrawn, the prisoner had been fully advised that he had formed and expressed an opinion which It would require evidence to remove, and by the course which was pursued must be held to have taken the chances as to that opinion being favorable or adverse, and to have waived all objection.

In Brlstow's Case, 15 Grat. 646, the court said: "To permit prisoners to avail themselves, after verdict, of pre-existing objections to the competency of jurors as a matter of right would not only be unreasonable, but most mischievous in its consequences. Delays in the administration of criminal justice and the chances for the escape of the guilty would be greatly increased. Proper verdicts, especially in trials for grave offenses, would be continually set aside. A prisoner knowing or willfully remaining ignorant of the incompetency of a juror would take the chances of a favorable verdict with him upon the jury, and, if the verdict should be adverse, would readily enough make the affidavit necessary to avoid its effeet" Poin-dexter's Case, 33 Grat. 792; Hite's Case, 96 Va. 489, 31 S. E. 895.

In Simmons v. McConnell, 86 Va. 500, 10 S. E. 840, it was held: "After verdict they [the defendants] cannot have a new trial for this cause, unless it appears that injusticehas been done to them by admitting the disqualified juror."

And in Beck v. Thomson (W. Va.) 7 S. E. 447, it was said: "A new trial will not be granted on account of the disqualification of a juror for a matter that is a principal cause of challenge which existed before he was elected and sworn as such juror, but which was unknown to the party until after the trial, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole case made before the court on a motion for a new trial that the party suffered injustice from the fact that such juror served in the trial of the case."

It appears from these authorities that in cases where the cause of challenge is unknown at the time the juror is elected and sworn, and which could not have been discovered by the exercise of ordinary diligence, it will not be a sufficient ground for a new trial unless it is made to appear that the parties suffered injustice from the fact that such juror served in the trial of the case.

The case is immeasurably stronger where the disqualification of the juror was known, had been established, and his name had been stricken from the panel. We appreciate the difficulty which, on such occasions, confronts counsel. We recognize the great responsibility resting upon them. But the fact remains that in withdrawing the objection to a juror under such circumstances they had, in contemplation of law, taken the "chances of a favorable verdict with him upon the jury." Bristow's Case, supra.

It appears from bills of exception taken during the trial and by affidavit made upon motion to set aside the verdict, that during the progress of the trial the court room was filled to its capacity with citizens who manifested a strong sympathy with the prosecution. Upon one occasion, when the mother of the young lady upon whom the assault was committed was testifying, there was applause, which the court promptly rebuked, and threatened to clear the court room. Upon another occasion, during the argument of counsel who assisted the prosecutor, his remarks were applauded, and counsel himself reminded the...