Karnes v. Commonwealth

• Decision Date: 18 June 1919
• Citation: 99 S.E. 562
• Parties: KARNES v. COMMONWEALTH.
• Court: Virginia Supreme Court

99 S.E. 562

KARNES

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 18, 1919.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Impanel.]

[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Jury of the Vicinage.

Error to Corporation Court of Roanoke.

A. H. Karnes was convicted of murder in the second degree, and Drings error. Reversed, and case remanded for new trial if the Commonwealth shall be so advised.

Hoge & Darnall and Hairston & Hopkins, all of Roanoke, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Morton L. Wallerstein, of Richmond, for the Commonwealth.

PRENTIS, J. The accused was convicted of murder in the second degree and sentenced to 12 years' confinement in the penitentiary.

1. The prisoner objected to the jury as impaneled, upon the ground that it was illegally constituted and selected, and in support of his motion had the original venire facias made a part of the record. His objection was overruled, and he excepted.

The question is controlled by section 4018 of the Code, the last paragraph of which provides that—

"No irregularity or error in drawing the names or in making out or copying or signing or failing to sign the list or in summoning the persons named on the list shall be cause for summoning a new panel or for setting aside a verdict or granting a new trial, unless objection thereto was made before the jury was sworn, and unless it appears that such irregularity, error, or failure was intentional or is such as to probably cause injustice to the commonwealth or to the accused."

It appears that six of the jurors who served were not in the list of jurors named in the original venire facias. If this objec tion had been made before the jury was sworn, and the record failed to show that the additional jurors had been lawfully impaneled, then it is clear that the motion should have been sustained. It appears, however, from the bill of exception that this objection was not made until after the jury had been impaneled. A jury is not impaneled until it has been selected, found free from exceptions, and duly sworn in the case, and inasmuch as the clear inference is that the jury had been sworn before the objection was made, it was properly overruled, for it does not appear that the irregularity was intentional, or such as probably to cause any injustice to the accused. While the statutes with reference to the summoning and impaneling of jurors in criminal cases are mandatory and must be strictly followed, yet this court will indulge every proper presumption in favor of the regularity of the proceedings, and will not reverse the case where no injury is shown, unless the objection is made before the jury is sworn.

2. The crime charged (which was the murder of a married woman who was habitually maintaining illicit relations with the prisoner, and had previously maintained similar relations with other men) was committed in the county of Roanoke, just outside of the city of Roanoke and within one mile of the city limits. The accused was indicted in the corporation court of the city of Roanoke. He demurred to the indictment, upon the ground that the venue of the crime was in the county of Roanoke, and that he could not be tried in the city, because, among other reasons, by section 8 of article 1 of the Virginia Constitution, he was* entitled to a trial "by an impartial jury in his vicinage."

That the statute, Code, § 3055, expressly gives the corporation courts of the state concurrent jurisdiction with the circuit courts over criminal offenses committed within one mile of a city is clear. It is claimed, however, that this statute is unconstitutional, as violative of the constitutional right of the prisoner to have a jury of his vicinage.

The rule in England, from which we get the provision for a trial by a jury of the vicinage, is that the vicinage includes the county in which the crime is committed. In this country, likewise, while as a general rule the county constitutes the district (and hence the vicinage) of the court in which indictments for crime are prosecuted, still the true construction of the word "vicinage" as used in the Constitution is that it corresponds with the territorial jurisdiction of the court in which the venue of the crime is laid. In this case, the corporation court of the city of Roanoke, under the general statute referred to, is vested with jurisdiction to try indictments for crimes committed withinthe city and within one mile of its corporate limits, and this territory constitutes the district over which the court has jurisdiction. Hence a jury summoned from any part of that district is a jury of the "vicinage, " or venue, of the crime. Had the accused been indicted in the county of Roanoke, the jury would have been summoned from some district of the county remote from the place of the crime, and the fact that this jury was summoned from the city of Roanoke, which constitutes a part of the district over which the corporation court has jurisdiction, is not objectionable, and does not violate the constitutional provision that the prisoner is entitled to be tried by a jury of his vicinage. The statute has been in force for many years, many persons have doubtless been convicted thereunder, and its validity has been generally accepted. No constitutional right has been denied the accused, and no sufficient reason has been suggested which would justify us in holding the statute unconstitutional.

In Ruffin's Case, 21 Grat. (62 Va.) 790, this court upheld the constitutionality of a statute which had been attacked on this ground where a convict who had committed a crime in the county of Bath was tried in the circuit court of the city of Richmond, basing its ruling upon the fact that he was a convict in the penitentiary, under the control and subject to the laws which governed that institution and its inmates.

3. It is urged for the accused that the court erred in excluding evidence of certain declarations made to him and to others by the deceased, indicating her fear of one Agee, and his threats against her. This man Agee had also been criminally intimate with the deceased, and had been suspected of the crime (though he had, after an investigation, been released), and the statements which were excluded may be summarized thus: That while driving out with the accused on Thursday before the murder, which occurred on the following Saturday night, just before she passed a man named Strain, she pulled her hat down over her face as though to conceal her identity, and said she did so because she was afraid Strain would tell Agee that she was riding out with the accused, and that Agee would kill her; that on Saturday, the afternoon of the murder, when by appointment she was with the accused, she kept looking back after she left the railroad station, because she was afraid that Agee was following her; that she feared violence from Agee; that she no longer went with Agee; that he told her he would kill her if he caught her with the accused; that she tried to get her mind off of Agee, But that he would come where she worked to see her. The trial court properly admitted evidence of the actions of the deceased, but refused to admit evidence of her statements, most of which accompanied these actions.

It would be vain to attempt to reconcile all of the conflicting cases as to when such statements can be admitted. Much must be left to the discretion of the trial judge, but where the proper determination of a fact depends upon circumstantial evidence, the safe practical rule to follow is that in no case is evidence to be excluded of facts or circumstances connected with the principal transaction, from which an inference can be reasonably drawn as to the truth of a disputed fact. 8 R. C. L. p. 180. The modern doctrine in this connection is extremely liberal in the admission of any circumstances which may throw light upon the matter being investigated, and while a single circumstance, standing alone, may appear to be entirely immaterial and irrelevant, it frequently happens that the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion. Where the inquiry is as to the state of one's mind at a particular time, his statements and declarations indicating his state of mind are generally admissible. Note, 95...