Farrar v. Com., 4916
| Decision Date | 22 June 1959 |
| Docket Number | No. 4916,4916 |
| Citation | 109 S.E.2d 112,201 Va. 5 |
| Court | Virginia Supreme Court |
| Parties | RUSSELL E. FARRAR v. COMMONWEALTH OF VIRGINIA. Record |
Paul Whitehead and Harold B. Singleton (J. Frank Shepherd; Shrader & Singleton; Edmunds, Whitehead, Baldwin & Graves, on brief), for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
Russell E. Farrar was indicted under § 18-98, Code 1950, 1 for committing a crime against nature, by voluntarily submitting to carnal knowledge of his body by Alfred W. Howard by way of the latter's mouth. Howard, indicted under the same statute, was convicted by a jury on January 10, 1958 and sentenced to serve eighteen months in the penitentiary. On January 14, 1958 a jury trial was had for Farrar and he was found guilty as charged in the indictment on conflicting evidence and sentenced to confinement in the penitentiary for one year. We granted him a writ of error from the judgment entered on the verdict.
In his assignments of error, Farrar alleged that the court erred (1) by permitting eight jurors to serve who were on the venire called in the case against Howard; (2) by refusing a view of the premises where the alleged criminal act occurred; (3) by giving instruction No. 1 as offered by the Commonwealth, and (4) by refusing to set aside the verdict on the ground there was not sufficient credible evidence to support a verdict for conviction.
Prior to the January 1958 term of the court a venire of twenty-four names was drawn by lot from the jury box for the trial of cases during that term. A writ of venire facias was issued by the clerk directing the city sergeant to summon twenty of the twenty-four names from the list furnished him. Accordingly, twenty persons were summoned and they were in attendance. They tried cases on the docket including the indictment against Howard. All jurors were present in the courtroom on January 10, 1958 when Howard was arraigned and pleaded. Twelve jurors were regularly selected for the trial. The eight jurors stricken from the panel of twenty were excused and excluded from the courtroom along with all other persons not needed for the trial. They did not hear the evidence adduced. Counsel for Farrar had requested a separate trial with a different jury. The sergeant was directed to summon twelve additional jurors from a list of sixteen jurors drawn from the jury box. These twelve jurors and the eight jurors who were struck from the panel of twenty in the Howard trial were in attendance for the trial of Farrar on January 14, 1958.
Before court convened on that day, counsel for Farrar and the Commonwealth Attorney appeared in the judge's chambers by a prearranged appointment. There counsel for Farrar moved to quash the venire of eight members of a jury who were struck in the Howard trial, on the grounds that they were present when Howard was arraigned and pleaded; that they saw Howard; that the results of his trial had been published in local newspapers, and they would be biased or prejudiced against Farrar thereby depriving him of a fair and impartial trial.
Counsel for Farrar filed as exhibits copies of the newspapers in which the above articles were published. In the Lynchburg News, published on January 11, 1958, there was an article on an inside page headed: 'Two men given prison terms' and it contained a paragraph which read: 'Alfred W. Howard, 30-year old Negro, 1002 Fifth St., indicted on a sodomy charge, was sentenced to 18 months in prison.' The next paragraph stated: On the same day the Daily Advance published substantially the same account of the cases on an inside page. The court in overruling the motion concluded that in the absence of evidence that any of the eight jurors were prejudiced against Farrar, it should be determined by examination upon their voir dire. Counsel for Farrar excepted to the court's ruling for the reasons stated, and the twenty jurors were seated in the box, after which eight were struck and the trial proceeded.
Section 19-179, Code 1950, provides:
'In any case of felony when a sufficient number of jurors to constitute a panel of twenty free from exception cannot be had from those summoned and in attendance, or when the venire facias or panel has been quashed for any cause, the court shall select from the names on the list provided for by §§ 8-182 and 8-184, the names of, and cause to be summoned, so many persons as may be deemed necessary to obtain a panel of twenty free from exception; and, if for any reason the list be found to have been unlawfully, illegally or improperly prepared, the court shall select from the persons who were eligible to have been placed on the list, and cause to be summoned, so many persons as may be deemed necessary to obtain a panel of twenty, free from exception, and the venire thus summoned, in either such event, may be used for the trial of all criminal cases to be tried at that term, both felonies and misdemeanors, in the same manner as if the venire had been obtained according to the provisions of §§ 19-171 to 19-177.'
The record indicates that the additional sixteen jurors, from which twelve were summoned, were drawn from the jury box, whereas § 19-179, supra, requires the court to select so many persons deemed necessary to obtain a panel of twenty free from exception from the list provided for by §§ 8-182 and 8-184. Farrar made no objection to the manner in which these jurors were obtained; therefore, such irregularity will be disregarded. (§ 19-176, Code 1950) His objection is to the court's refusal to quash the venire of eight, and since the objection was offered before the jury was sworn it was timely made.
Section 19-182, Code 1950, reads in part:
'In every case of a felony there shall be selected from the persons summoned, as aforesaid, a panel of twenty persons, free from exception, from which panel the Commonwealth may strike four and the accused four, and the remaining twelve shall constitute the jury for the trial of the accused. * * *'
Counsel for Farrar maintain twenty persons, free from exception, were not made available for the trial. In support of that contention they argue in their brief:
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