Hall v. Commonwealth

• Decision Date: 18 June 1885
• Citation: 80 Va. 555
• Parties: HALL v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

80 Va. 555

HALL v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 18, 1885

Error to judgment of circuit court of Montgomery county, rendered 30th May, 1884, on an indictment against S.D. Hall, for the murder of Charles A. Bowyer, on 25th September, 1872; by which judgment, the jury by their verdict having found said Hall guilty of murder in the first degree, as charged in the indictment, the said court sentenced the said Hall to be hanged by the neck until dead.

Said Hall was indicted in the county court, but upon his arraignment, he elected to be tried in the circuit court of said county, and was there tried with the result aforesaid.

It appears from the record that " twenty-four jurors having been summoned in the manner prescribed by law, the prisoner by his counsel asked that the selection of the panel of sixteen from the number summoned be by lot; but the court directed that a panel of twenty-four, free from exceptions should first be obtained, and that from such panel sixteen should be chosen by lot. Thereupon it was ascertained that seventeen of the twenty-four summoned under the venire facias were free from exception. By direction of the court, the sheriff then summoned additional jurors from the bystanders, until seven other persons were found free from exception; and thereupon, from the twenty-four persons so found sixteen were selected by lot. From the list thus selected, the prisoner struck off the names of four persons and the remaining twelve were sworn as the jury in the case." After the verdict was rendered, the prisoner moved for a new trial, on the ground that " the venire and the jury which tried him was neither selected, summoned nor impaneled in the manner required by law," which motion the court overruled. And thereupon, on the same ground, he moved in arrest of judgment, which motion was also overruled by the court, and sentence pronounced as aforesaid. To this judgment a writ of error was awarded by one of the judges of this court.

James A. Walker and A. A. Phlegar, for the prisoner.

I. The jury was not called, chosen, sworn and impaneled according to law, and the record shows this. Code 1873, chap. 158, § 24 p. 1063; Acts 77-8, chap. 17, § 1, p. 339, §§ 3, 4, 8, 11; Sands' case, 21 Gratt. 871, 881.

II. A prisoner who is not tried according to all the formalities of law, is not tried by " due process of law. " Boggs v. The State, 6 Am. Reports, 689-90; Hopt v. Utah, 110 U.S. 578-9; 19 Gratt. 656.

III. All steps necessary to be taken in a criminal case must appear affirmatively on the record. Gregg v. The People, 1 Am. Crim. Report, 602; Aylesworth v The People, 1 Id. 604; Davis v. The State, 1 Id. 606; Stubbs v. The State, 1 Id. 611; Hopt v. Utah, 110 U.S. 579.

IV. The errors appearing on the face of the record will be corrected on a writ of error, and no bill of exceptions was necessary. No bill of exceptions lies in any criminal case at common law, or in Virginia, except by statute. Freeman v. The People, 47 Am. Decisions, 220; Mitchell v. The State, 25 Id. 442; Ewell v. The State, 27 Id. 485; Acts 77-8, p. 345, ch. 18, § 1.

V. A writ of venire facias is necessary to authorize a sheriff to summon a jury in a criminal case. An omission to issue the writ is a fatal error, apparent on the face of the record. The People v. McCay, 18 Johnson 215-16-17.

A court cannot discharge a juror of its own motion. 6 Am. Rep. 689; 2 Id. 423.

The venire of twenty-four men, summoned from the list furnished by the judge of the county court, composed the panel from which the jury was to be selected, and the court had no right to add to, alter or change that panel, except for cause.

The record shows on its face the following errors:

1st. It was error to place the seventeenth man of the twenty-four on the panel. Sixteen of the original twenty-four having been found free from exceptions, the prisoner had the right to strike four from that number and be tried by the remaining twelve.

2nd. It was error to summon seven additional jurors from the bystanders after the original panel had furnished seventeen qualified jurors free from exception.

3rd. It was error to direct the sheriff to summon additional jurors from the bystanders without a writ of venire facias and without a list furnished by the court.

4th. It was error to select sixteen of the completed panel of twenty-four by lot, there being no law authorizing such a proceeding. By this proceeding the court, without the consent of the accused, caused three of the original sixteen jurors, viz: Warren A. Puckett, Lafayette McCauley and Christian Olinger, to stand aside, and substituted three others without the consent of the prisoner, viz: C. E. Lowder, Oscar M. Nelson and James Walters. State v. Brown, 2 Am. Crim. Rep. 423.

Attorney-General, F. S. Blair, for the commonwealth.

The prisoner does not say he was not fairly dealt with, or that he suffered any injury from the mere manner in which the jury was formed. The objection, if good, was made too late. No exception was taken at the opening of the case, but it was reserved for the motion to set aside the verdict.

The objection, if good, ought to have been made before the jury was sworn. Bristoe's Case, 15 Gratt.; United States v. Gale, U. S. Reports, 109, p. 65. The statute provides, that where the penalty may be death, the writ shall require the officer to summons twenty-four persons, in manner as provided in 33d section. Ch. 17, sec. 4, Acts 1877-78, read in connection with sections 3 and 4, sec. 8 of same chapter, which provides that where the penalty may be death, there shall be selected from the persons summoned--(not from the original venire facias )--from those summoned, either by the new venire facias or from the bystanders, so as to get the twenty-four as required by sec. 4. The plain and manifest purpose of the statute is to have twenty-four persons free from exception where the penalty may be death, and sixteen where it may not. Suppose from those originally summoned only ten be found free from exception, what must the court do? Must it summon six others and stop, or must it not summon, as provided, until twenty-four be gotten free from exception, and from the twenty-four select the sixteen? Why does the law require twenty-four to be summoned, if that number are not to be found free from exception, so as to select the sixteen from them? Epe's Case, 5 Gratt. p. 696, where this language is used: " In making up the panel of twenty-four," etc. Thus you will see the panel is incomplete until twenty-four are gotten, which fact is shown more plainly by the reasoning of the court in Dowdy v. Commonwealth, 9 Gratt.; see particularly pp. 735 and 736. The plaintiff in error will contend that from the number so summoned a sufficient number to try the case was all that was to be required. Twelve is a sufficient number to actually try. If the law did not intend to distinguish between cases where punishment might be death, why in one case is sixteen required, and twenty-four in the other, and in both is the peremptory right to strike off four? The court in this case only selected from those summoned a panel of sixteen. As said before, the eighth section does not say, shall be selected from those summoned by the original venire facias, but says, " there shall be selected from the persons summoned a panel of sixteen persons, free," etc.

Who are the persons summoned? Sec. 4.--When punishment may be death, twenty-four, if a sufficient number for the trial cannot be had, etc., etc., the...