Jones v. Commonwealth

• Decision Date: 20 March 1890
• Citation: 10 S.E. 1004,86 Va. 740
• Parties: Jones v. Commonwealth.
• Court: Virginia Supreme Court

10 S.E. 1004

(86 Va. 740)

Jones

v.Commonwealth.

Supreme Court of Appeals of Virginia.

March 20, 1890.

Criminal Law—Former Jeopardy — Res GestEs.

1. Under Code Va. 1887, § 4026, which provides that" in any criminal case the court may discharge the jury when it appears that they cannot agree in a verdict, or that there is a manifest necessity for such discharge, " the fact that, on a prosecution for robbery, the court, without defendant's consent, discharged a jury which had failed to agree after being out four hours, does not, on a subsequent trial, support a plea of former jeopardy. Following Wright's Case, 75 Va. 914.

2. On a prosecution for robbery, where it appears that the prosecuting witness had angrily called out to the retreating robbers: "1 know you and intend to have you in jail before morning 1" his declarations as to who the robbers were, made about a quarter of a mile distant from the scene of the alleged robbery, and 10 minutes after the event, are inadmissible as part of the res gestae.

Lacy, J., dissenting.

E. P. Buford, for plaintiff in error. R. Taylor Scott, Atty. Gen., for the Commonwealth.

Fauntleroy, J. This is a writ of error to a judgment of the circuit court of Brunswick county rendered on the 12th day of October, 18S9, in the case of Harrison Jones against the commonwealth. The plaintiff in error was jointly indicted with one James Wheeler at the August term, 1889, of the county court of Brunswick county, for the robbery of Mansfield Moore in the county of Brunswick on the night o^f July 11, 1889. At the said August term of the said court the said Harrison Jones was arraigned, and, having elected to be tried separately he pleaded " Not guilty; " and he was thereupon put upon his trial on the said indictment on the 27th of August, 1889. The trial proceeded regularly, and at 3 o'clock p. m. of the following day, the case was submitted to the jury. At 7 o'clock p. m. of that day, the jury, having failed to agree upon a verdict, was discharged by the court. At the September term of the said county court the prisoner was again put upon his trial upon the said indictment, and thereupon he filed a special plea, setting forth that, in consequence of the proceedings had and taken against him on the said indictment at the said August term, he had been put in jeopardy for the offense charged against him in said indictment, and that he could not be again tried for the said offense. To which special plea the attorney for the commonwealth filed a demurrer, which the court sustained; and the trial was proceeded with upon the issue already joined, upon the plea of "Not guilty, " and the jury found the prisoner guilty, and fixed the term of his confinement in the penitentiary at 10 years; and the court sentenced the prisoner in accordance with the verdict. During the progress of the trial, the prisoner filed several bills of exceptions to the rulings of the county court; and, having obtained from the circuit court of Brunswick county, on the 12th day of October, 1889, a writ of error and supersedeas to the said judgment of the county court, the circuit court affirmed the said judgment. The case is hereby a writ of error to the said judgment of the circuit court. The errors assigned are: "(1) The court erred in sustaining the demurrer to the special plea of the prisoner filed at the September term, 1889, of the county court." This plea set up as defense the fact that the jury, failing to agree, was discharged without the prisoner's consent, and against his protest. There is nothing in the record to show that the prisoner objected to the discharge of the jury, which discharge was the exercise of judicial discretion conferred upon the court by section 4026, Code Va. 1887; and there is nothing in the record to cast a suspicion of the trial judge's fairness and integrity in the proceeding. The statute says: "In any criminal' case, the court may discharge the jury when it appears that they cannot agree in a verdict, or that there is a manifest necessity for such discharge." Wright's Case, 75 Va. 914, is an adjudication of this statute, and in that case, reviewing the case of Williams v. Com. 2 Grat. 568, and Dye's Case, 7 Grat. 662, Judge Christian, speaking for this court says: "There can be no question, therefore, of the power of the court, when it became satisfied that the jury could not agree, to withdraw a juror, without any consent on the part of the prisoner, and to discharge the jury, and continue the case. " We think that the court did not err in sustaining the demurrer to the plea, and this assignment of error is not well taken.

The second assignment of error is to the ruling of the court allowing Armistead Chavis to testify to the jury statements made by the prosecutor, Mansfield Moore, on his arrival at the house of said Chavis, on the night of July 11, 1889, after the alleged robbery of the said Moore, as evidence to sustain the issue on the part of the commonwealth. To which introduction the prisoner objected, as set forth in his bill of exceptions ...