Jones v. Commonwealth

• Decision Date: 13 November 1890
• Citation: 12 S.E. 226,87 Va. 63
• Parties: Jones. v. Commonwealth.
• Court: Virginia Supreme Court

87 Va. 63

12 S.E. 226

Jones.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Nov. 13, 1890.

Assault—Indictment—Omission of Venire— Verdict—Reversal on Appeal.

1. An indictment alleging that accused made an assault with a stone, and "did feloniously, maliciously, and unlawfully beat, wound, ill-treat, and cause bodily injury, " etc., sufficiently conforms to the language of Code Va. § 3671: "ft any person maliciously shoot, stab, cut, or wound, " etc.

2. The recital in the records of a felony case that "thereupon came a jury, * * * who, being selected and tried in the manner prescribed by law for the selection and trial of juries in cases of felony, were sworn, " etc., will not take the place of the affirmative showing, which is necessary, that there was a writ of venire facias in the case.

3. The provision of Code Va. § 3156, that in felony cases "no irregularity in any writ of venire facias, or the drawing, summoning, returning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless, " etc., does not apply to a felony case in which there was no venire at all.

4. The charge in the indictment being that the injury was done maliciously, "with intent to maim, disfigure, " etc., a verdict simply finding the prisoner guilty of "malicious assault" is fatally defective.

5. Where the indictment was found upon the evidence of 17 persons, and the main question was whether the offense, which was committed on a crowded street, was committed by the prisoner or some one else, the limiting of prisoner's counsel to 30 minutes in his argument to the jury is ground for reversal, though it does not appear how many witnesses there were on the trial.

6. The refusal of the court to stop the trial, and give the prisoner's counsel time to then prepare a bill of exceptions, is not ground for reversal, where there appears to have been no abuse of the court's discretion.

Thomas N. Williams, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lewis, P. This is a writ of error to a judgment of the corporation court of the city of Lynchburg in a prosecution for a felony. The indictment charges that the prisoner, "Charlie Jones, on the 24th day of December, in the year 1889, within the said city, in and upon one Chalmers Warrick, then and there being, an assault did make, and with a rock in the hands of him, the said Charlie Jones, then and there had and held, the said Charlie Jones, then and there him, the said Chalmers Warrick, did feloniously, maliciously, and unlawfully beat, wound, illtreat, and cause bod-ily injury, with the intent in so doing, him, the said Chalmers Warrick, to maim, disfigure, disable, and kill, " etc. There was a demurrer to the indictment, which was overruled, whereupon the prisoner was put upon his trial, and, the jury having heard the evidence, and the arguments of counsel, returned a verdict in these words: " We, the jury, find the prisoner guilty of malicious assault, and fix his sentence at five years in the penitentiary." He thereupon moved the court to set aside the verdict, and to grant him a new trial, but the motion was overruled, and sentence pronounced in accordance with the verdict.

Taking up the assignments of error in the order in which they are presented, we are of opinion that the demurrer to the indictment was rightfully overruled. The indictment sufficiently conforms to the language of the statute, (Code, § 3671,) and is sufficient.

There are other objections, however, to the proceedings in the court below which are well taken. The first of these is that there was no writ of venire facias in the case. The attorney general, in opposition to this view, relies on a recital in the record, which, after setting forth the arraignment, etc., proceeds as follows: 'Thereupon came a jury, to-wit, [naming the jurors,] who, being selected aud tried in the manner prescribed by law for the selection and trial of juries in cases of felony, were sworn, "etc.; and from this the court must presume, it is contended, that all was rightly done which was required to be done. But this is a mistaken view. It has been repeatedly decided by this court that a venire is an indispensable process, both at common law and under the statute to authorize the sheriff to summon a jury in a felony case, and therefore that the omission to direct a venire, when required, is an error apparent on the record, of which advantage may be taken on motion in arrest of judgment, or for the first time on a writ of error in the appellate court. Hall's Case, 80 Va. 555; Richard's Case, 81 Va. 110. This is on the principle that that which is essential must affirmatively appear by the record, for it is well settled that the presumption that all acts have been rightfully done cannot supply the substantive parts of a proper record in a felony case. Hence it is, that where a waiver by the accused leaves the record destitute of an essential part, he may afterwards take advantage of the defect, notwithstanding the waiver, as where he waives the right to be present throughout the trial, or consents to go to trial without arraignment or plea. 1 Bish. Crim. Pr. (3d Ed.) § 125; Dougherty v. Com., 69 Pa. St. 286; Spurgeon's Case, 10 S. E. Rep. 979; Hopt v. People, 110 U. S. 574, 4 Sup. Ct. Rep. 202. Lawrence's Case, 30 Grat. 845, to this extent is consequently overruled.

But, apart from what has just been said, the third bill of exceptions shows expressly that the jury were not summoned under a venire facias, but simply from a list furnished by the judge, and that on this ground the prisoner moved, after verdict, in arrest of judgment. The motion, how ever, was overruled, because the objection was not made before the jury was sworn, and because, in the opinion of the court, the prisoner had not been prejudiced. The attorney general, in support of this ruling, refers to section 3156 of the Code, which provides that "no irregularity in any writ of venire facias, or in the drawing, summoning, returning or impaneling of jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the swearing of the jury." But this section was not intended to apply to juries in felony cases, as is manifest not only from the context, but from section 4048, which makes it...