Jones v. Com., 4023

Citation72 S.E.2d 693, 194 Va. 273, 35 A.L.R.2d 761
Case DateOctober 13, 1952
CourtSupreme Court of Virginia

Page 693

72 S.E.2d 693
194 Va. 273, 35 A.L.R.2d 761

Record No. 4023.
Supreme Court of Appeals of Virginia
October 13, 1952.

[194 Va. 274] Z. V. Johnson, Jr. and Joseph M. Winston, Jr., for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the defendant in error.


BUCHANAN, J., delivered the opinion of the court.

The defendant, Neva Jones, has been sentenced to death for the murder of his wife. The sufficiency of the evidence to support the verdict is admitted, but the defendant contends that the court committed prejudicial error in its response to a question from the jury as to whether they would have any assurance that the defendant would not 'get out' if they gave him life imprisonment or a long term of years. The court certified the following statement of facts:

'Neva Jones, age 28, colored, was tried on January 21st, 22nd and 23rd,

Page 694

1952, on an indictment for the murder of his wife, Helen Jones. The defendant killed his wife in front of the Ritz Theater for colored persons on Spring Street, in Danville, Virginia, on the night of May 21, 1951. The defendant first cut his wife in the face and then began stabbing her while chasing her around a car parked in front of the Ritz Theater. The stabbing took place in the presence of several disinterested witnesses who described the brutal manner in which it was done. The sole defense of the defendant was that he intended to cut his wife on the face to keep her from being so attractive to men and that he then suffered a mental blackout and knew nothing about having stabbed his wife and killing her. He had suffered these blackout spells before and on at least one occasion such a spell had been witnessed by fellow workers. He received a medical discharge from the Army in 1945 because of these spells [194 Va. 275] which he first suffered while overseas; and his army hospital record showed these spells to be epileptic in nature as evidenced by electroencephalograph tracings.'

It is shown by the record that after the jury had been considering their verdict for about two hours the court had them brought back into the courtroom and inquired whether they desired to go to supper or to continue their deliberations. Some stated they would like to go to supper and others made no answer. The foreman thereupon left the jury box and went to the Bench. There, in the presence of the defendant, his counsel and the Commonwealth's attorney, he stated that the jury had decided that the defendant was guilty of murder in the first degree but they wanted to know whether if they gave him life imprisonment, a term of ninety-nine years or any long term of years, they would have any assurance that the defendant would not 'get out.' The court told the jury that 'it could not give that assurance; that would be in the hands of the executive branch of the government and that the court was of the judicial branch; that you and I represent the judicial branch and have nothing to do with that. ' One of defendant's counsel then inquired of the court privately, and not in the hearing of the jury, whether it would be proper further to advise the jury that persons sentenced to life imprisonment are not eligible for parole. The court answered counsel in the negative. Counsel did not formally note an objection or an exception to the court's action at that time. The jury then announced that they preferred to continue their deliberations rather than go to supper. They returned to their room and after deliberating 20 or 25 minutes they returned a verdict of guilty of murder in the first degree and fixed the punishment at death.

The proper response to inquiries of the kind here made was stated in Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797, in effect to be that it is the duty of the jury if they find the accused guilty to impose such punishment as they consider to be just under the evidence and within the limits stated in the court's instructions; and that they must not concern themselves with what may afterwards happen.

In the Coward Case the jury returned into court and inquired what time the defendant would get off while he was confined in jail. The court responded by quoting the statute to the effect that with the consent of the judge he would get ten [194 Va. 276] days off of each month under stated conditions. That response was held to be reversible error. After reviewing cases from a number of other jurisdictions, this court said:

'* * * It is error for the court, by its instructions, or for counsel in argument, to tell the jury that its sentence imposed and confirmed may be set aside or cut down by some other arm of the State. It is their duty to inflict such punishment as appears to be just and proper and this is the full measure of their duty.' 164 Va. at p. 646, 178 S.E. at p. 799.

In the opinion the court referred to chapter 136, Acts 1932, providing a good behavior credit of fifteen days on each month of sentence and said: 'A jury which has been instructed as to this statute might be of opinion that ten years' confinement was just punishment for a proven crime. In order

Page 695

to impose it a twenty year sentence would be necessary. Plainly such a verdict would be indefensible.' 164 Va. at p. 642, 178 S.E. at p. 798.

It was also said in the opinion that 'courts often hold that this admitted error, if not harmless, is insufficient to sustain a reversal. It is harmless where a minimum sentence is imposed and it is harmless in murder cases when the sentence is death, and generally it is of little importance where the court in itself fixes the penalty.' 164 Va. at p. 646, 178 S.E. at p. 799.

In saying that the error would be harmless in murder cases 'when the sentence is death,' the reference was necessarily to cases where the death sentence could not have been influenced by the error.

In McCann v. Commonwealth, 174 Va. 429, 447, 4 S.E. (2d) 768, 775, involving a similar situation, the procedure established by the Coward Case was quoted with approval.

The rule stated in the Coward Case has been applied in other jurisdictions. In Commonwealth v. Johnson, 368 Pa. 139, 81 A. (2d) 569, 572, after the jury had deliberated some twenty minutes they inquired of the court what the sentence of life imprisonment meant, 'Does it mean what it infers or is there the possibility of a pardon after serving part of his time? ' The court replied that 'life imprisonment means what it says,' but that the Board of Pardons had the right to intervene and to pardon anyone sentenced by the court; 'That is something that we cannot control. ' The jury imposed the death penalty. The sentence thereon was reversed. The court said it was [194 Va. 277] obvious that the jury hesitated at fixing the penalty at life imprisonment because they feared the defendant might be pardoned at some future time, and when told that might happen and was something beyond the control of the court, they decided on the death penalty. It was said that the statement of the trial judge, although true, was highly prejudicial; that it was the duty of the jury to...

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