Harmon v. Com.

• Decision Date: 29 November 1971
• Citation: 185 S.E.2d 48,212 Va. 442
• Court: Virginia Supreme Court
• Parties: Seabert Howard HARMON v. COMMONWEALTH of Virginia.

Page 48

185 S.E.2d 48

212 Va. 442

Seabert Howard HARMON v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Nov. 29, 1971.

Stuart B. Campbell, Thomas G. Hodges, Wytheville, for plaintiff in error.

William P. Robinson, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

I'ANSON, Justice.

Seabert Howard Harmon, defendant, was found guilty of second degree murder by a jury and his punishment fixed at 20 years in the State penitentiary. He was sentenced in accordance with the jury's verdict and is here on a writ of error to the judgment.

Defendant contends that the trial court erred (1) in overruling defendant's motion to quash the writs of Venire facias; and (2) in admitting into evidence the particulars of defendant's prior felony conviction and evidence as to another unrelated crime.

The questions raised by defendant's assignments of error do not require a full statement of the evidence. Suffice it to say that the evidence shows that on the afternoon of April 21, 1970, defendant shot and killed Wesley Edward Spence at or near the intersection of West Main Street and North Sixth Street, in the Town of Wytheville. Lt. Robert Sult, of the Wytheville Police Department, and several other persons witnessed the shooting and testified in the case.

Before defendant was arraigned on the indictment, his counsel moved to quash the writs of Venire facias for errors of law apparent on the face of the writs. The motion was overruled and an exception was noted.

The record shows that two writs of Venire facias were issued. The first writ was dated July 24, 1970, and ordered the sheriff of Wythe County to summon '_ _ persons' from an attached list to serve as jurors in defendant's trial. The sheriff's return indicated that he summoned all 46 persons whose named appeared on the list. A second writ was issued, also dated July 24, 1970, and it ordered the sheriff to summon 30 persons from a list of 36 names. There is no indication of how many, if any, of those persons found on the second list were actually summoned by the sheriff. Seven of the 36 names appearing on the second list were not listed among the 46 found on the first list.

Code § 19.1--196 provides that the writ of Venire facias issued in a felony case shall command the officer to summon 20 persons qualified to serve as jurors from a list furnished him by the clerk issuing the writ. It further provides that a violation of such procedure would constitute reversible error if a defendant is tried by a jury composed of any such improperly summoned veniremen. Code § 19.1--198 provides that the list from which the 20 veniremen are to be chosen shall contain 24 names drawn by the clerk or his deputy.

For good cause shown, the trial judge in a felony case may order more than 24 names to be drawn and placed on the list and more than 20 persons to be summoned, provided the numbers are specified and the list or number drawn is not more than four in excess of the number of persons to be summoned. Code § 19.1--199.

We have repeatedly held that the statutory provisions with respect to empaneling juries are mandatory and not directory. Hall v. Commonwealth, 80 Va. 555, 561 (1885); Jones v. Commonwealth, 100 Va. 842, 846, 41 S.E. 951, 952 (1902); Slater v. Commonwealth, 182 Va. 579, 582, 29 S.E.2d 853, 854 (1944).

Clearly, in the instant case the statutory provisions which govern the summoning of a jury were not followed. The first writ of Venire facias indicated no number of prospective jurors to be summoned from the list of 46 names. The second writ ordered the sheriff to summon ten persons more than the statute prescribes from a list containing 12 names in excess of the statutory number, and the difference between the number of be summoned and the number listed was greater than the statutory four. There is no order in the record before us showing good cause for drawing and summoning the number of jurors shown on the two writs of Venire facias.

The verdict of the jury summoned by such irregular writs is not saved by Code § 19.1--201. This statute provides in part that no irregularity in any writ of Venire facias in the drawing, summoning, or empaneling of jurors shall be cause for setting aside a verdict of the jury unless it appears that such irregularity, error, or failure was intentional, or such will probably cause injustice to the Commonwealth or to the accused. In Patrick v. Commonwealth, 115 Va. 933, 938, 78 S.E. 628, 630 (1913), we held that the issuance of writs of Venire facias different from what the law prescribes is an intentional irregularity and not within the curative provisions of the statute.

We hold that the trial court erred in not quashing the writs of Venire facias.

Defendant next says the trial court erred in allowing the Commonwealth, on cross-examination of the defendant, to develop particulars of his previous felony conviction.

Defendant's contention raises the permissible scope of the prosecution's cross-examination after defendant has voluntarily opened up by his own testimony the fact that he had been 'convicted of a killing' and another related matter.

The record shows that defendant's own counsel, on direct examination, asked defendant if he had been 'convicted once of killing,' and he replied in the affirmative. Counsel also asked defendant why he did not surrender his pistol to Lt. Sult after the shooting. He replied that Sult had previously testified against him to something that was not true and...