Honesty v. Commonwealth

• Decision Date: 07 January 1886
• Citation: 81 Va. 283
• Parties: HONESTY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

81 Va. 283

HONESTY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 7, 1886

Error to judgment of corporation court of Winchester, on the verdict of a jury finding Wesley Honesty guilty of the murder, in the first degree, of Joseph McFaul, upon the indictment pending in that court, and sentencing the said Wesley Honesty to death by hanging. To this judgment the prisoner obtained, from one of the judges of this court, a writ of error and supersedeas; which was argued at Staunton, but decided at Richmond.

Opinion states the case.

Richard Parker, C. M. Louthan and L. T Moore, for the prisoner.

F S. Blair, attorney-general, and W. R. Meredith, for the Commonwealth.

OPINION

RICHARDSON J.

The prisoner, by his counsel, demurred to the indictment, and the court overruled the demurrer, and rightly did so.

At the trial the prisoner took several bills of exceptions to the rulings of the court, and these present the points for decision, including the facts proved, which are set forth in one of them.

The first assignment of error is that " the jury was not legally selected." The facts relating to this assignment are set forth in the prisoner's bill of exceptions, No. 1, from which it appears that twenty-four persons--qualified jurors--had been summoned, as required by law, and were in attendance; and the court, proceeding to select a panel of sixteen therefrom, on examination two of the number were found by the court disqualified by having previously formed and expressed opinions as to the guilt or innocence of the prisoner and were set aside; that then two others of the said twenty-four persons were examined by the court and found to be duly qualified and free from exception; and that the court, without examining any others of the said twenty-four, directed the panel of said sixteen to be handed to the prisoner that he might strike four therefrom, and that the remaining twelve should constitute the jury for the trial of the cause; and that to this mode of selecting the jury the prisoner objected, and moved the court not to proceed to select a panel of sixteen as aforesaid until twenty-four persons, duly qualified to act as jurors, and free from exception, and not disqualified by reason of opinions previously formed and expressed as to the guilt or innocence of the prisoner, should be obtained and be present, claiming that from said twenty-four a panel of sixteen persons free from exception should be selected by lot, and that from the panel of sixteen so selected the prisoner might strike four, and that the remaining twelve should constitute the jury. The court overruled the motion, and the prisoner excepted.

This objection to the mode of selecting the jury is without merit, as may be speedily shown. The mode of selection insisted on by the learned counsel for the plaintiff in error, is precisely that which this court held to be erroneous in Hall's Case, 80 Va. 555. Delivering the unanimous opinion of the court, Lewis, P., in that case, said: " Of the twenty-four persons originally summoned, sixteen having been found free from exception, the jury for the trial of the accused ought to have been selected from the panel of sixteen, who were thus found to be qualified. And the selection should have been made by the accused striking four from the panel, leaving the remaining twelve to constitute the jury." Hence, the mode of the selection held by this court in that case to be the proper one, is the very mode that was pursued by the corporation court of Winchester, in this case; and is the precise mode of selection of a jury for the trial of a felony punishable with death that is prescribed by the fourth and eighth sections of chapter 17, Acts of 1877-78, the law in force, the provisions of which are plain and imperative, and not merely directory.

That the full number of twenty-four persons authorized to be summoned, are not required to be present before the court can proceed to select the panel of sixteen, free from exception, is put beyond all question by the provision in the fourth section, that " in any case of felony, when a sufficient number of jurors for the trial of the case cannot be had from those summoned and in attendance, the court may direct another venire facias, and cause to be summoned from the bystanders, or from a list to be furnished by the court, so many persons as may be deemed necessary to complete the jury. Thus, in the event named, another venire facias is made necessary. When, by this mode of proceeding, a panel of sixteen has been selected, free from exception, the court must stop and permit the prisoner to exercise his peremptory right to strike off four of the sixteen, leaving the remaining twelve who, it is declared, shall constitute the jury. If the twenty-four, all free from exception, must be present, then there is no legal way of getting rid of the eight in excess of the requisite panel of sixteen. But, for the plaintiff in error, it is insisted that this difficulty is obviated by selecting the panel of sixteen from the twenty-four by lot. It is a sufficient answer to this to say that the statute does not so provide. There is no authority for resorting to a ballot, except in case the prisoner, when the panel of sixteen has been selected, fails to strike off four, and then, and only then, the twelve who shall constitute the jury shall be selected from the panel of sixteen by lot. The simple requirement of the statute is, that " there shall be selected from the persons summoned a panel of sixteen, free from exception," & c. The accused himself cannot make the selection. He can only strike four from the sixteen selected by the court upon examination. Who, then, but the court conducting the trial, can properly do so?

A somewhat similar question arose in Sands' Case, 21 Gratt. 821, under section 9 of chapter 262, Acts of 1870-71, a statute in principle not, in this respect, unlike the present statute. The question was readily disposed of by Moncure, P., who said: " If as many as sixteen persons were not summoned on the first venire facias, where is the difficulty of having other qualified persons summoned, until a panel of sixteen jurors, free from exception, shall be completed? To be sure the ninth section does not literally embrace such a case, but it does in spirit and effect. What the accused is entitled to have is a panel of sixteen jurors, from which a jury for the trial of his case may be selected. Suppose twenty-four persons are summoned, and all attend and are free from exception, how are sixteen of them to be chosen to constitute the panel? The accused cannot make the choice. The officer can call any sixteen of them he pleases, and put them on the panel. The accused may challenge four, and the remaining twelve will constitute the jury. Suppose only sixteen of the twenty-four are summoned, the others not being found, and the sixteen are free from exception, why may not they constitute the panel? Why, when more than sixteen have been summoned, and the others are returned ‘ not found,’ may not the court proceed to ascertain whether, of those summoned and in attendance, there be as many as sixteen free from exception, and if so, to constitute a jury out of that number?"

It is plain then that the requirement of the statute is that twenty-four or more persons having been summoned, there should be selected by the court from that number, or from those who appear, sixteen persons, free from exception, from whom the accused may strike four, or upon his declining so to do, twelve of the panel of sixteen shall be selected by lot, who shall constitute the jury. Whatever may be the advantage, or the disadvantage of this precise mode of selection over any other to the accused, it is so written, and it is mandatory. Indeed, it is not perceived in what respect a strict compliance with the provisions of the statute now in force are less favorable to the accused than the law as it formerly was. The leading requirements are few and simple, and they afford the accused in every case of felony, whether punishable with death, or not so punishable, ample protection and the widest range of selection consistent with the demands of justice and the public good.

After the evidence was heard--tending to prove the facts as certified by the court, which will hereinafter be set forth--on the motion of the prisoner by his attorney, the court gave to the jury ten instructions as follows--to-wit:

I. The court instructs the jury that on the trial of a case of felony (as the present is) they are judges of the whole case, both on the law and on the evidence.

II. A person charged with crime is always presumed to be innocent until his guilt is fully proved by the evidence. Any mere preponderance of evidence is insufficient to convict him of such crime, unless upon the evidence he is proved to be guilty beyond any reasonable doubt.

III. That if the jury shall have any reasonable doubt as to any important fact necessary to convict the prisoner of the offence of murder, whether in the first or second degree, they are to give the prisoner the benefit of such doubt.

IV. The court instructs the jury that every homicide is presumed in law to be murder in the second degree, and punishable by confinement in the penitentiary; and in order to elevate the offence to murder in the first degree, the burden of proof is on the Commonwealth; and to reduce the offence to manslaughter the burden of proof is on the prisoner.

V. The court instructs the jury that to constitute murder in the first degree the evidence must clearly and distinctly prove beyond any reasonable doubt, that the prisoner was not only incited to the killing of the deceased by malice, and desperate wickedness of heart; but such killing must have...