Montague v. Commonwealth
| Decision Date | 24 November 1853 |
| Parties | MONTAGUE v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. On a trial for a felonious offence, the court, of its own motion, without the suggestion of either party, may examine upon oath all who have been summoned to serve upon the jury touching any disability created by statute, such as infancy want of freehold or property qualifications, or in a capital case, conscientious scruples on the subject of capital punishment; and upon any such disability being thus made to appear, or if it be shown that any one summoned has been convicted of perjury, the court may and should set aside any such juror of its own action, without objection made by either party.
2. On a trial for felony the court, of its own motion, without the suggestion or consent of either party, may excuse or set aside a juror who, though in all other respects competent, is disabled physically or mentally, by disease, domestic affliction, ignorance of the vernacular tongue, loss of hearing or other like cause, from properly performing the duties of a juror. But the erroneous exercise of this power is a matter of exception by the prisoner, for which the judgment of the court may be reversed.
3. As no challenge to a juror is allowed to the commonwealth except for cause, when such challenge is made, the cause should be shown, and should be a good and legal cause for the exclusion of the juror; otherwise it should be overruled.
4. The decision of a court allowing a challenge on the part of the commonwealth, or disallowing a challenge on the part of the accused, whether such challenge be a principal challenge or a challenge to the favor, is matter of exception on the part of the accused; which it is his right to have reviewed in the appellate court.
5. The court cannot of its own motion, where no challenge is made without good cause, set aside a juror, except where he is disabled physically or mentally from properly performing the duties of a juror, or is disqualified by statute.
6. Though in all cases great weight is justly due to the opinion of a court before whom the jurors are questioned and examined, yet upon exception taken the appellate court must judge from the facts therein stated, whether the reason for setting aside a juror is good and sufficient or the contrary.
7. A talesman when examined on his voir dire sad that he had heard a great deal said about the case, but that he had not heard or read the evidence given at the examinations before the mayor or Hustings court; and that he had formed no opinion on the subject. He then stated that since the prisoner had been in jail his wife and family had moved to the lot adjoining his residence, and had lived there; that they were often at his house, and that there was great intimacy between the families, and on that account he would rather not sit in the case, that his mind might be influenced: and in answer to a question from the court he said he was unwilling to trust himself under the circumstances: He thought he could give the prisoner a fair trial on the evidence: That he had no prejudice for or against the prisoner, there was no connection by blood or marriage between them, and that he had never spoke to the prisoner's wife or family on the subject of the trial. He is a competent juror, and it is error to set him aside, for which the prisoner may except and have the judgment reversed.
8. The appellate court will not enquire whether injury has been done to the prisoner by improperly setting aside a competent juror, but the law will intend prejudice to the prisoner.
At the November term 1852 of the Circuit court of Petersburg, Lewis Montague was indicted for the murder of Gardener G. Thompson. His trial came on in June 1853, when he was convicted of murder in the first degree, and sentenced to be hung.
Upon the trial several questions were made by the prisoner, but only one of them was considered by this court: That relates to the exclusion of a juror. After the original panel had been exhausted, the court directed thirty-six persons to be summoned to attend as jurors. One of the persons so summoned was John A. Ezell, who being sworn on his voir dire, and being interrogated by the court, whether he had made up and expressed any opinion as to the guilt or innocence of the prisoner, answered that he had heard a great deal said about the case, but that he had not heard any of the evidence given in at the examination before the mayor or before the Hustings court, and had not read any account of either of those examinations; and that he had not formed any opinion on the subject. He then stated voluntarily and without having been enquired of as to that matter, that since the prisoner had been in jail, the wife and family of the prisoner had moved to the lot adjoining his (Ezell's) residence, and had lived there; that they were often at his house, and that there was great intimacy between the families; that on that account he would rather not sit in the case; that his judgment might be influenced. And being asked by the court whether his unwillingness to serve arose from its being an unpleasant duty, or because he was unwilling to trust himself under the circumstances, he replied, it was because he was unwilling to trust himself under the circumstances. And being asked whether he could now give the prisoner a fair trial on the evidence which he might hear on the jury, he answered that he thought he could. He also stated that he had no prejudice for or against the prisoner: That there was no connection by blood or marriage, between himself and the prisoner or their families. He also stated that he had never conversed with the prisoner's wife or any of his family, or spoke to any of them on the subject of this trial. And thereupon the court rejected the said Ezell as a juror; and the prisoner excepted. Upon the application of the prisoner this court granted him a writ of error.
Joynes and Patton, for the prisoner, insisted:
1st. That Ezell was a competent juror, Hailstock's Case, 2 Gratt. 564; Clore's Case, 8 Id. 606; Wormeley's Case, supra 658.
2d. That it was error to reject him from the panel, for which the prisoner was entitled to have the judgment reversed. They insisted that the opinion to the contrary expressed in Clore's Case, was not sustained by the authorities cited to support it, and was condemned by the uniform current of decisions in England, and by our own statute. They cited The King v. Willis, Barnard. King's Bench R. 108; President, & c. of Brooklyn v. Patchen, 8 Wend. R. 47; Heath's Case, 1 Rob. R. 735; Sperry's Case, 9 Leigh 623; The King v. Inhab. St. Michael, 2 W. Bl. 718; Doebler v. Commonwealth, 3 Serg. & Rawle 237; Eaton v. Commonwealth, 6 Binn. R. 447; Jones v. State, 3 Blackf. R. 37; Commonwealth v. Spring, Amer. Law Reg. 424; Leath's Case, 1 Va. Cas. 151; State v. Shaw, 3 Ired. R. 532, and Gaston, J.'s opinion in this case; Rawls v. The State, 8 Smedes & Marsh. 599; Commonwealth v. Parker, 2 Pick. R. 550; State v. Benton, 2 Dev. & Bat. 196; The King v. Edmonds, 4 Barn. & Ald. 471; State v. Lytte, 5 Ired. R. 58; Hines v. The State, 8 Humph. R. 597; Boles v. The State, 13 Smedes & Marsh. 398; Judge v. The State, Georgia R. 173; Commonwealth v. Lesher, 17 Serg. & Rawle 155; Code, ch. 208, § 9, p. 744.
3d. That it was error in the court to set aside the juror, upon its own motion, without any objection either by the prisoner or the attorney for the commonwealth. The opinion of Gaston, J. in Benton's Case, 2 Dev. & Bat. 196, 218; Spring's Case, Amer. Law Reg. 424; 1 Rev. Code of 1819, 607.
The Attorney General, for the commonwealth, insisted:
1st. That the judge who presided at the trial having held that Ezell was not an impartial juror, he must be so considered in this court. This principle is referred to in Clore's Case, 8 Gratt. 606; People v. Bodine, 1 Denio's R. 281; Honeyman's Case, 3 Id. 121; Freeman's Case, 4 Id. 9, 31-37; Harrisburg Bank v. Foster, 8 Watts' R. 304.
2d. That the court had authority to set aside the juror without any objection expressly made by either the prisoner or the attorney for the commonwealth. Cornell's Case, 2 Mason's R. 91, 94, 104; Commonwealth v. Stockley, 10 Leigh 678; Damon's Case, 13 Wend. 351; Lewis' Case, 9 Smedes & Marsh. 115; Benton's Case, 2 Dev. & Bat. 196; Hines v. The State, 8 Humph. R. 597. And such is the constant practice in the Circuit courts.
3d. That a challenge to the favor raises a mere question of fact, whether the juror is partial; which question was...
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Blakey v. Commonwealth
...ought not to have been allowed as a matter of exception, or to be entertained as error." This principle was ignored in Montague v. Commonwealth, 10 Gratt. 767, 51 Va. 767, in which no reference was made to the Clore's Case, supra. It was held that the rejection of a qualified and competent ......