Lawrence v. Commonwealth

• Decision Date: 21 March 1878
• Citation: 71 Va. 845
• Parties: LAWRENCE v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

71 Va. 845

LAWRENCE v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 21, 1878

1. In a trial for a felony the record says that the defendant being arraigned, plead not guilty to the charges against him in said indictment alleged. And a panel of sixteen jurors summoned by the sheriff was examined by the court and found free from all legal exceptions, and qualified to serve as such jurors according to law. Whereupon the prisoner erased from the panel four of the jurors, and the remaining twelve constituted the jury for the trial of the accused, to whom there was no objection, to-wit, & c. It is to be inferred that the jurors were properly summoned.

2. It is not necessary that the form of the oath administered to the jury should be entered on the record; but it is sufficient if it appears from the record that they were duly sworn.

3. It is necessary that the prisoner shall be present in person when arraigned and during his trial; but if it may be inferred from the record that he was present, that is sufficient, though it is not formally stated that he was present.

4. It is not necessary that the prisoner should be present when the jury which had been sent out for the night is brought in in the morning and sent to their room.

5. The attorney for the Commonwealth may introduce witnesses in chief to sustain the charge, whose names are not written at the foot of the indictment.

6. The indictment for rape charges in one count that it was done by force and against the consent of the female, and that she was under the age of twelve years. The prisoner may be convicted under the indictment if the jury shall believe she was under twelve years of age, though she consented to the act.

7. The prisoner may be convicted, though the female told him she was over twelve years of age and he had reasonable cause to believe that she was over that age. He takes the risk, and if she was not twelve years old he is guilty under the statute.

8. A case in which, though if the judges of this court had been on the jury they would have found a different verdict, or if they had presided at the trial, they would have set aside the verdict and granted a new trial, as an appellate court they must affirm the judgment.

This was an indictment in the county court of King William county against Charles Lawrence for rape. The case is stated by Judge Moncure in his opinion.

George P. Haw, for the prisoner.

The Attorney General, for the Commonwealth.

MONCURE P.

This is a writ of error to a judgment of the county court of King William, rendered on the 23d day of October, 1877, against the plaintiff in error, Charles Lawrence, in a prosecution for rape. It was charged in the indictment that the said Charles Lawrence, " on the eighth day of August, in the year one thousand eight hundred and seventy-seven, and in the county aforesaid, with force and arms on and upon one Serena Coleman, a female child under the age of twelve years to-wit: of the age of eleven years and eleven months, feloniously did make an assault; and her, the said Serena Coleman, then and there unlawfully, feloniously, violently and against her will, and by force did ravish and carnally know her, the said Serena Coleman, against the peace and dignity of the Commonwealth of Virginia." The accused pleaded not guilty to the charges against him in said indictment alleged. The case was tried by a jury, which found a verdict against him in these words:

" We, the jury, find the prisoner guilty, and ascertain his term in the state penitentiary to be ten years."

The accused moved the court to set aside the verdict, and grant him a new trial; which motion was overruled and judgment was rendered according to the verdict. The accused applied to the judge of the circuit court of said county for a writ of error to the said judgment, which writ of error was refused. He then applied to this court for such writ, which was accordingly awarded.

There were various assignments of error in the judgment, most of which were made in the petition for a writ of error to the judge of the circuit court. But an additional one was made in the petition for such a writ to this court. And still another in the oral argument of the case before this court. We will proceed to notice and dispose of these assignments of error in the order in which they were relied on in the said argument; and,

First. The assignment made for the first time in the said petition for a writ of error to this court, which assignment is in these words: that by the record " it appears that a panel of sixteen jurors only were summoned in the case; whereas, by the law, the panel should have been composed of twenty-four, from which the jury should have been selected; and that they were not summoned under a venire facias, or drawn in the manner provided by law."

It is stated in the record that " the defendant, being arraigned, pleaded not guilty to the charges against him in said indictment alleged. And a panel of sixteen jurors summoned by the sheriff, were examined by the court and found free from all legal exceptions, and qualified to serve as such jurors according to law. Whereupon, the prisoner erased from the panel four of the jurors, and the remaining twelve constituted the jury for the trial of the accused, to whom there was no objection, to-wit:" & c. And this is all that is said in the record about the summoning and constituting the jury.

The Code, ch. 202, §§ 4, 5 and 9, pp. 1245-6, as amended by the act of 1875-6, ch. 167, pp. 207-8, provides for the issuing of a venire facias and the summoning and constitution of a jury for the trial of persons accused of felony; and it is provided in section 9, as amended, that the directions of the statute shall be pursued " until a panel of sixteen jurors, free from exception, be completed. The accused shall have a peremptory challenge as to four of the panel, and the remaining twelve shall constitute the jury for the trial of the case," & c. There can be no doubt but that a venire facias was issued and other proceedings thereon had as aforesaid, though the same are not set out in the record, except from the completion of the panel of sixteen jurors as aforesaid, which fact, and the further proceedings had in the case in regard to the jury, are set out. It does not appear in the record that there was any irregularity in any of these proceedings. If there had been, it might, and no doubt would have been excepted to by the accused, who had counsel in court at the time, and thus put upon the record. There having been no such exception, the presumption is there was no such irregularity. In Stephens' case, 4 Leigh 679, it was held that in the trial for a capital felony it is not necessary that it should be expressly stated in the record that the petty jurors were freeholders, and that a motion in arrest of judgment because several of the petty jury were not freeholders; this being matter of fact not appearing in the record, is not a good reason for arresting judgment. In Bristow's case, 15 Gratt. 634, it was held that an objection to the mode of selecting the jury in a trial for murder, must be made at the time the jury are chosen, and the prisoner cannot avail himself of it after verdict. The principle of those cases applies to this.

We are therefore of opinion that there is no error in the judgment in this respect.

Second. The next assignment of error noticed in the argument, is one which was there noticed for the first time, not having been made in the petition for a writ of error, either to the circuit court or to this court. That assignment of error is that it does not appear from the record that the jury were duly sworn, or rather that it it appears they were not duly sworn.

The counsel for the plaintiff in error, to show the proper form of the oath to be administered to the jury in such cases, refers to 3 Rob. Pr. old ed. p. 174, where the following form is given: " You shall well and truly try and true deliverence make between the Commonwealth and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence; so help you God." Also to Matthew's Criminal Dig. p. 293, note 14, in which the same form is stated.

There can be no doubt of the correctness of this form, which is generally, if not always, pursued in cases of felony, and was no doubt pursued in this case. But it is not prescribed by any law, common or statute, and one of the same import would be sufficient. It is not necessary that the form should be copied in the record, but sufficient that the jury should therein appear to have been duly sworn.

We are of opinion that it so appears in this case. It is stated in the record, after setting out the facts in regard to the arraignment and plea of the accused, and the constitution and names of the jury summoned and impanelled for his trial, that they " were sworn the truth of and upon the premises to speak." Now, this was obviously not the form of the oath administered to the jury, but was merely intended to be a statement of the fact that the jury was duly sworn. In saying that they " were sworn the truth of and upon the premises to speak," reference was made by the word premises to the proceedings immediately set forth, to-wit the indictment, the arraignment, the plea, and the constitution of the jury. And the effect is the same as if it had been said that the jury were sworn " well and truly to try and true deliverance make between the Commonwealth and the prisoner at the bar, and a true verdict give according to the evidence." The prisoner and his counsel were in court when the jury were sworn, and might, and no doubt would, have objected if the jury had not been properly sworn. That no objection was made, shows...