Gardner v. Com.

Citation195 Va. 945, 81 S.E.2d 614
Case DateMay 03, 1954
CourtSupreme Court of Virginia

Page 614

81 S.E.2d 614
195 Va. 945
Supreme Court of Appeals of Virginia
May 3, 1954.

Page 615

[195 Va. 946] George E. Allen; Allen, Allen, Allen & Allen; Frank A. S. Wright; and Gambill, Minor & Wright, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.


HUDGINS, C.J., delivered the opinion of the court.

James E. Gardner, hereinafter designated defendant, seeks by this writ of error a reversal of a judgment convicting him of driving an automobile while under the influence of intoxicants in violation of Code section 18-75.

The Attorney General moved to dismiss the writ of error because defendant's brief does not contain a statement of facts as required by rule 5:12:1(c), Rules of the Supreme Court of Appeals of Virginia. We have repeatedly said that compliance with this rule is of immeasuable help to the Court in deciding the questions presented, and have warned that a failure to comply with it might result in the denial or a dismissal of the appeal or writ of error. Norfolk Southern Ry. Co. v. Lassiter, 193 Va. 360, 68 S.E. (2d) 641; Southwest Virginia Hospitals, Inc. v. James C. Lipps, 193 Va. 191, 68 S.E. (2d) 82; James v. Commonwealth, 192 Va. 713, 66 S.E. (2d) 513; Matthews v. W. T. Freeman Co., 191 Va. 385, 60 S.E. (2d) 909; Hall v. Hall, 181 Va. 67, 23 S.E. (2d) 810. We are fully conscious of the fact that such a dismissal is drastic to the litigants affected, but we must insist on orderly procedure [195 Va. 947] in order to dispose expeditiously of the many matters presented to us. However, two of the three questions raised in this case are questions of law and are not necessarily controlled by the facts. The printed record is short and contains only thirty-six printed pages

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of testimony. the evidence is in sharp conflict and on the first trial there was a hung jury. Under these circumstances we overrule the motion, but repeat with emphasis the warning heretofore given that, unless there is substantial compliance with the rule, the appeal or writ of error may be refused or dismissed without considering the questions presented.

Defendant's first contention is that the trial court over his objection impaneled only seven jurors to try the case, thereby limiting him to only one peremptory challenge. His contention is that under Code section 8-200, as amended in 1952, a jury of eleven should have been impaneled, thus giving him and the Commonwealth the right to three peremptory challenges of jurors.

Prior to the 1952 amendment section 8-200 provided that: 'In every case the plaintiff and defendant may each challenge one juror peremptorily when the jury consists either of five or of seven. ' The amendment struck out the word 'one' before juror and in lieu thereof inserted the word 'three' jurors.

Defendant argues that the section before and after the amendment applies to juries in criminal cases as well as juries in civil cases.

The code commission of 1950 divided section 6000 of the 1919 code into several sections and made the last sentence of that section, without change, section 8-200. Section 6000 of the 1919 code was a part of chapter 249 and applied only to juries in civil cases. Section 8-200 is a part of Title 8, chapter 11, of the 1950 code, and likewise applies to juries in civil cases. Chapter 195 of the 1919 code, of which section 4927 is a part, applies to juries in criminal cases, and Title 19, chapter 8, Article 3, of the 1950 code, of which sections 19-181 and 19-183 are parts, applies to [195 Va. 948] juries in criminal cases. Code section 19-181 is as follows:

'Jurors in misdemeanor cases. -- Jurors drawn or summoned under chapter 11 of Title 8 shall be jurors as well for the trial of cases of misdemeanor as of civil cases, and all the provisions of that chapter except the provisions of §§ 8-193 and 8-202 and that provision of § 8-204 which directs the compensation and mileage of jurors to be paid out of the county or corporation levy (which excepted provisions shall apply exclusively to jurors and juries in civil cases) shall extend as well to jurors and juries in cases of misdemeanor as to jurors and juries in civil cases. And §§ 8-174, 8-175, 8-178, 8-194, 8-199 to 8-201, 8-205 to 8-208, 8-215 and 8-216 shall apply to jurors and juries in all cases, criminal as well as civil. Seven jurors shall constitute a panel in the trial of misdemeanors, but the jury therefor shall be composed of five. * * *'

The 1950 code commission in codifying the above section followed the example or pattern of the 1919 code in codifying section 4927 by making several sections pertaining to juries in civil cases applicable to juries in criminal cases. These references define who are qualified jurors, who are disqualified, and who are exempt from jury service; and provide for the punishment of those who, after being duly summoned, fail to attend, their compensation and by whom paid, etc. Section 19-181 specifically provides that: 'Seven jurors shall constitute a panel in the trial of misdemeanors, but the jury therefor should be composed of five. ' This mandatory provision is stated in different language in the second paragraph of section 19-183, which reads as follows: 'In every case of misdemeanor, whether on an appeal from a trial justice or an original trial, the Commonwealth and the prisoner shall each be allowed one peremptory challenge.'

Litigants in civil cases are usually referred to as plaintiff and defendant, and in criminal cases as Commonwealth and defendant, or Commonwealth and accused. Neither of the [195 Va. 949] latter designations is found in the 1952 amendment. It is inconceivable

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that the General Assembly, by amending one section of the statute applying to civil cases, should by reference intend to amend two sections applicable specifically to juries in criminal cases. This phase of the question was thoroughly...

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