Mccue v. Commonwealth

• Decision Date: 26 January 1905
• Citation: 49 S.E. 623,103 Va. 870
• Parties: McCUE v. COMMONWEALTH.
• Court: Virginia Supreme Court

49 S.E. 623

103 Va. 870

McCUE

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 26, 1905.

GRAND JURORS — DISQUALIFICATION—PLEA IN ABATEMENT — JURORS — COMPETENCY—WITNESSES—IMPEACHMENT—CRIMINAL LAW—INSTRUCTIONS—SPECIAL PROSECUTION—TRIAL— NEWSPAPERS — APPEAL — CONSTITUTIONAL LAW—WRIT OF ERROR.

1. That a member of the grand jury was disqualified may be set up by plea in abatement to the indictment, and the issue thus made is to be tried by a jury.

2. That the replication filed by the commonwealth to a plea in abatement setting up facts disqualifying a grand juror concluded with an offer "to verify" instead of "to the country" is immaterial after verdict.

3. The trend of recent decisions is in the direction of limiting, rather than extending, the disqualification of jurors by reason of mere opinion. To have the effect of disqualifying a venireman, his opinion must be substantial, and not a mere impression which will not interfere with his fairness.

4. Section 3351, Code 1904, relating to the method of contradicting an adverse witness called by a party, applies to criminal as well as civil cases.

5. An instruction upon a point covered by other instructions is properly refused.

6. The right of the public prosecutor to have associated with him an attorney to assist in the prosecution is well established, and so long as such attorney keeps within proper bounds he is not open to criticism before the jury.

7. The safer and better practice is to exclude newspapers from jurors in a criminal case, but an accused cannot object to the fact that they were read when he made no protest at the time.

8. A review by an appellate tribunal is no part of "due process of law."¶ 8. See Constitutional Law, vol. 10, Cent. Dig. § 760.

9. It is the practice, and by section 3466 of Code made the duty, of the Court of Appeals to deny a writ of error in a criminal case when of opinion that the judgment is plainly right.

Error to Corporation Court of City of Charlottesville.

One McCue was convicted of murder, and petitions for writ of error. Denied. Petition for rehearing denied.

J. I. Lee, J. Tinsley Coleman, and Walker & Sinclair, for petitioner.

KEITH, P. Petitioner was indicted by a grand jury in the corporation court of the city of Charlottesville on September 19, 1904, for the murder, on the 4th of September preceding, of his wife, Fanny M. McCue. At a subsequent term of the court he was tried upon this indictment, and on the 5th day of November the jury found him guilty of murder in the first degree. The court sentenced him to be hanged, and he thereupon applied to this court for a writ of error, which was refused, the court being of opinion that the judgment complained of was plainly right. At a subsequent day a supplementary petition was filed, asking the court to rehear its judgment refusing the writ of error, and upon the original and supplemental petitions the case is now before us for consideration.

The first assignment of error is to the judgment of the corporation court upon a plea filed by the petitioner, in which he alleges that Lyman, one of the grand jurors finding the indictment, was not a resident of the city of Charlottesville. To this plea the commonwealth, by its attorney, filed a replication. Thereupon the court impaneled a jury, and made up and propounded to it the issue whether or not said Lyman was at the time of finding the indictment a resident of the city of Charlottesville. This issue was found by the jury in the affirmative, and the action of the court in overruling prisoner's motion to set aside the verdict and entering judgment thereon constitutes the petitioner's first assignment of error.

It was decided in Commonwealth v. Cherry, 2 Va. Cas. 20, that by force of the common law, where a bill of indictment is found by a grand jury, one of whom is an alien, or otherwise disqualified by law, the bill or presentment may be avoided by plea. Commonwealth v. Long, 2 Va. Cas. 318.

In Commonwealth v. St Clair, 1 Grat 568, it was pleaded in abatement to the indictment that one of the grand jurors was not a freeholder. Upon that plea an issue was made up, tried at the bar of the court by a jury, the issue found for the defendant, and the indictment quashed.

In Day v. Commonwealth, 2 Grat. 503, the prisoner pleaded in abatement that one of the grand jurors was at the time of finding the indictment a surveyor of a highway. To this plea the attorney for the commonwealth replied generally, and thereupon the court decided the issue against the prisoner. The general court was of opinion that the issue so joined was one of fact, and that it should have been submitted to a jury; and for this error the judgment was reversed, and a new trial awarded.

Counsel for petitioner criticise the replication which the court permitted to be filed to the plea in this case upon the ground that it concludes with an offer "to verify, " when it should have been "to the country."

We shall not stop to inquire into this nicety of pleading. The injury of which the petitioner complained was that he had been indicted by a grand Jury upon which there was a juror incompetent by reason of the fact that he was not a resident of the city of Charlottesville. That issue was submitted to a jury, which heard the evidence, and decided it against him. We cannot permit the grave interests presented in this case to be determined upon a consideration so trivial. It is certain that no right of the prisoner was prejudiced by the ruling of which he complains. The verdict of the jury upon this issue must be considered in this court as upon a demurrer to evidence, and the evidence was, in our judgment, so considered, sufficient to sustain it.

The second assignment of error is as to the qualification of the petit juror J. V. Stock-dell, who was challenged by the petitioner.

He was asked if he had formed or expressed an opinion, to which he replied, "I formed an opinion on the newspaper evidence." He was reminded by counsel that in law the prisoner was presumed to be innocent, and he was asked, "In your present state of mind, could you go on that jury, starting out with that presumption of innocence in your mind? A. I could not say that I could, sir, for the reason that I have read this evidence. Naturally there is some impression on my mind, but I cannot say that it is biased or prejudiced. The only thing I have heard is one side as published in the newspapers. I must, say that everything I read in the newspapers was one side." After further question and answer, counsel asked the Juror this question: "In spite of what you have read and heard, you could go upon this jury and give the prisoner a fair and impartial trial according to the instructions of the court and the evidence as detailed by the witnesses? A. I feel that I am a fair-minded man. Q. But I also understand, Mr. Stockdell, that what you have read of this case has destroyed in your mind the presumption of the prisoner's innocence; that you would not go on the jury presuming him to be innocent. A. I don't know about that. It is a question as to drawing a line betweenthinking him innocent and knowing him to be guilty, which I don't know."

In answer to other questions the juror stated "that as a fair-minded man I could render a verdict according to the law and the evidence, not biased; I have no prejudice one way or other"; and that as to innocence or guilt he would be governed by the evidence and the instructions of the court.

After numerous questions had been asked and reiterated, the object of which was to ascertain the precise character and strength of the opinion which the juror had formed and expressed, counsel asked him the following question:

"Do you feel at this moment that there is a presumption in your mind that this defendant is an Innocent man?"

To which he replied: "I would like to say this: That I feel that I am an honest and unbiased man, and as such that I could enter this jury unprejudiced and unbiased, and give the prisoner a trial according to the law and the evidence. If I did not feel so, I would want to be turned out; but at the same time I feel that I could serve, and am called here to serve, and that it is therefore my duty to serve.

"By the Court: Do you feel that you can go into this trial leaving your mind open to the evidence, free from any previously read accounts in the newspapers, and go through the trial believing him innocent until he is proved guilty? A. Yes, sir."

And thereupon the juror was accepted.

The cases upon this subject are almost without number, and they are not to be reconciled. The trend of recent decisions is in the direction of limiting, rather than extending, the disqualification of jurors by reason of mere opinion. Whatever the mind receives has an effect upon it, passing with almost infinite gradation from a mere impression to a fixed belief. The state strains every nerve to disseminate knowledge. By the diffusion of education it hopes to create a higher citizenship, and to find the means of repressing vice and crime; but if the courts take an extreme position upon this subject, and bold that every opinion shall work a disqualification for service as a juror, the administration of justice will be confided, not to the most intelligent, but to the most ignorant, of our citizens. The courts therefore, while resolute in seeing that every man shall be tried by an impartial jury, inquire into the quality and degree of the opinion, and to that end search the conscience of the juror upon his voir dire, and look into the sources of the information upon which his opinion rests.

No man can read the rigid examination to which this juror was subjected without being impressed with his fairness, with his desire to deal justly by the prisoner, and with his conscientious purpose to discharge his duty as a citizen.

In Moran's Case, 9 Leigh, 651, two jurors were examined upon their voir dire. One stated that he had heard the case spoken of in the town, and rumors in...