Owens v. Commonwealth
| Citation | 167 S.E. 377 |
| Parties | OWENS. v. COMMONWEALTH. |
| Decision Date | 12 January 1933 |
| Court | Virginia Supreme Court |
Error to Circuit Court, Hanover County.
Roger Owens was convicted of attempted rape, and he brings error.
Affirmed.
Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.
Warren L. Tiller, Jos. P. Hall, and Leith S. Bremner, all of Richmond, for plaintiff in error.
John R. Saunders, Atty. Gen., for the Commonwealth.
The accused, Roger Owens, was tried by a jury upon an indictment charging him with the crime of attempted rape. His punishmentwas fixed at confinement in the penitentiary for a period of five years, and judgment was accordingly pronounced by the court. Ten days thereafter the accused submitted a motion in writing, seeking to have the verdict set aside on the sole ground that during the progress of the trial the sheriff permitted the jury to separate, in derogation of the provisions of section 4902 of the Code, which reads in part as follows:
"In any case of a felony where the punishment cannot be death, the jury cannot be kept together unless the court otherwise directs. * * * ''
Section 4767 of the Code provides that "attempts to commit rape shall be punishable with death, or in the discretion of the jury, or of the court trying the case without a jury, by confinement in the penitentiary for life or for any term not less than three years. * * *''
The record fails to affirmatively show that the death penalty was not invoked by the attorney for the commonwealth, and therefore a decision of the case rests upon the provisions of section 4902 of the Code.
In support of the motion to set aside the verdict, Arthur Brown, the offending juror, was called by the accused and testified: "That he was one of the jurors that tried the case; that he was a little deaf; that he did not hear the court tell the sheriff that the jury must be kept together; that when the court adjourned for the lunch hour and the jury left the courthouse in charge of the sheriff, he left the other members of the jury at the courthouse door and went across the court green to the toilet; that he then walked out to the entrance of the court green, opposite the hotel, and was standing at the gate when the sheriff appeared on the hotel porch and called him to join the rest of the jury; that he then walked across the road to the hotel to the sheriff and went into the dining room with him where he sat down with the remaining eleven jurors and the sheriff and had his dinner; that the total time that he was absent from the other jurors did not exceed ten minutes at the outside; that during that period of absence he was not in the company of any other person, did not talk with any one and no one had anything to say to him about the case or have any conversation with him at all."
It further appears from the testimony of Woolfolk, a deputy sheriff, that he saw Brown standing outside the court green; that he saw three other people standing at a distance of approximately ten feet from Brown; that these people were not engaged in conversation with Brown and he did not see Brown in conversation with any one; that the Owens case was the only case tried that day; that there was not a large crowd present at the trial; that the accused resided in Williamsburg; that the prosecutrix resided in Richmond and both were strangers in Hanover county; that, from observation, no particular interest manifested in the trial.
Counsel for the accused contend that under section 4902 of the Code, it was necessary that the jury be strictly kept together, and the mere separation of the jury per se vitiates the verdict rendered, and to sustain the contention rely upon McCaul's Case, 1 Va. Cas. (3 Va.) 271; Overbee's Case, 1 Rob. (40 Va.) 756; Wormley's Case, 8 Grat. (49 Va.) 712, 56 Am. Dec. 162; and Trim's Case, 18 Grat. (59 Va.) 983, 98 Am. Dee. 765.
From the affidavits set forth in the opinion of the court in McCaul's Case, it appears that one juror, on the way from the courthouse to the jury room, stated that he was going home to get his dinner. Over the protest of the sheriff, into whose custody the jury had been committed, the juror separated from the other eleven jurors and was absent some fifteen or twenty minutes. During that period the juror, as appears from his affidavit, had conversations with several people who asked him if the case had been determined. On that state of facts, the appellate court very properly held that such a separation vitiated the verdict.
In Overbee's Case, it appears that a juror, without the knowledge of the court, left the jury box and passed out of the courthouse, through a crowd of persons collected about the door, and remained absent a few minutes, without, according to his testimony, having had communication with any one. Whether or not the juror heard the case discussed as he mingled with the spectators is not disclosed by the report of this case. The appellate court, without handing down an opinion, set aside the verdict and remanded the case for a new trial.
In Wormley's Case, it appears that the jury panel was completed on Saturday; the witnesses for the commonwealth and the accused were sworn; but before any evidence was given in the court adjourned. On Sunday evening, at the invitation of Mr. Chea-tam, the clerk of the court, the deputy sheriff, in whose charge the jury had been committed, took the jury to visit the clerk who resided about a half a mile from the courthouse. Upon arrival at the home of the clerk, the deputy sheriff and the jury went into the parlor where they found the clerk, his son-in-law, and a Mr. Winfree, who was employed in guarding the jail. Shortly after getting to Cheatam's, the deputy went out of the parlor and into another room between which and the parlor there was no connecting door, and while in this room the jury were out of his sight. While the deputy was absent for a period of five or ten minutes, liquor was served to the jury by the son-in-law. The deputy more than once left the jury in the same way, under the same conditions. Not once did he admonish the jury or the other persons present to abstain from any conversation upon the subject of the trial. The visit lasted for an hour, the time being passed in general conversation and without (as testified) any allusion to the approaching trial. In awarding a new trial, the court, in a brief opinion, without reference to the prior decisions, stated:
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Powell v. Commonwealth
...laid down in Barnes v. Commonwealth, 92 Va. 794, 23 S.E. 784. We likewise reaffirmed the principles laid down in Owens v. Commonwealth, 159 Va. 1015, 1022, 167 S.E. 377, 380, that the separation of the jury out of the custody and control of the court, or out of the custody and control of th......
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Powell v. Commonwealth, Record No. 2796.
...laid down in Barnes Commonwealth, 92 Va. 794, 23 S.E. 784. We likewise reaffirmed the principles laid down in Owens Commonwealth, 159 Va. 1015, 1022, 167 S.E. 377, that the separation of the jury out of the custody and control of the court, or out of the custody and control of the officer t......
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Mcdaniel v. Commonwealth
...and since the last modification of the common-law practice was made by Mr. Chief Justice Campbell in Owens v. Commonwealth, 159 Va. 1015, at page 1022, 167 S.E. 377, at page 380, in which this is said: We, therefore, lay down the rule that separation of the jury out of the custody and contr......
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Mcdaniel v. Commonwealth
...cases decided before and since the last modification of the common law practice was made by Mr. Chief Justice Campbell in Owens Commonwealth, 159 Va. 1015, 167 S.E. 377, in which this is at page 1022: `We, therefore, lay down the rule that separation of the jury out of the custody and contr......