Palmer v. Commonwealth

• Citation: 130 S.E. 398
• Court: Supreme Court of Virginia
• Decision Date: 12 November 1925
• Parties: PALMER. v. COMMONWEALTH.

130 S.E. 398

PALMER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 12, 1925.

Error to Circuit Court, Alleghany County.

Sam Palmer was convicted of murder, and he brings error. Affirmed.

O. B. Harvey, of Clifton Forge, and Charles Curry, of Staunton, for plaintiff in error.

The Attorney General, for the Commonwealth.

PRENTIS, P. The plaintiff in error has been convicted of murder in the first degree, and sentenced to confinement in the penitentiary for 30 years. This is a general statement of the outstanding facts:

L. S. McMannaway, the deceased", a prohibition officer, co-operating with C. A. Gum, the sheriff of Bath county, went to the western part of Bath county searching for a still which was supposed to be in that vicinity. They found none, and were returning home by a route which led them into Alleghany county. As they were descending a mountain road in a car, they saw another car approaching from the opposite direction. The road was narrow. They recognized Jesse Scott and the accused, Sam Palmer, as the occupants of the approaching car, for both of whom they knew warrants of arrest had been issued, charging each of them with a felony arising out of their alleged violations of the probation statute. Gum knew Scott and the deceased knew Palmer, the accused.

The sheriff testified that he knew that Scott would run rather than shoot, and for the purpose of making the contemplated arrest he purposely brought his car in collision with the other so as to bring both to a stop. The sheriff then told him to stop and not get out. Then Scott started to jump out of the car. Gum jumped out and caught him, and a desperate struggle ensued between them. During this time the accused and the deceased had also alighted, and in seeking to make the arrest the deceased said to the accused, "Halt! Put down that gun! Don't you shoot!" and just after this remark Gum heard two shots. It is perfectly apparent that one of these shots, then fired by Palmer, killed McMannaway almost instantly. The accused was also seriously wounded, manifestly by a shot fired by the deceased. Then the accused, while the sheriff was holding Scott, came back of him, and struck him (the sheriff) serious blows on the head, fracturing his skull, and rendering him unconscious. It is apparent that this attack upon the sheriff was made by the accused because the sheriff, who was then holding Scott, testified that Scott did not strike him, and no other person was present within striking distance. The accused and Scott then left the scene, taking with them all of the weapons which the sheriff and the deceased possessed, except the pistol of the deceased, which, when found, contained two empty shells. That the sheriff and the deceased were attempting to arrest Scott and the accused legally is perfectly apparent both from their conduct and language. They had information that the accused and Scott were traveling together in a car without a license, and had on that very day talked about arresting both of them. If not equally apparent, it can certainly be inferred that Scott and the accused knew of their purpose, and recognized them, because it is hardly to be conceived that such habitual lawbreakers as they are shown to be did not know both the sheriff, who had been in office more than 12 years, and McMannaway, the prohibition officer, who had qualified and operated in that territory for 4 years.

Neither Scott nor the accused testified.

That the homicide was deliberate is indicated by four previous statements which the accused, Palmer, had made to different people on several occasions. Among them, referring to an occurrence when officers had blocked the road, that if they blocked the road for him a shooting match was liable to happen; that on another occasion, while he was illegally carrying whisky, he was told that the officers would get him sooner or lat-er, and he replied that when they got him he would get some of them. Then at another time he said, while discussing prohibition officers, that he did not bother anybody, and was not going to be bothered, "but if they fooled with him, he would lay a.45 or some kind of a gun up in their face." On still another occasion, while discussing the same subject, when some one made the statement that there were four officers along the road looking for him, he said he would like to see four officers arrest three of them.

While there is some conflict between the evidence of the sheriff, Gum, and that of two or three witnesses who claimed to be in sight of but not at the scene, their apparently biased and inconsistent statements on different occasions were naturally discredited by the jury.

The judgment clearly should be and must be affirmed, unless some substantial right of the accused has been denied him by the trial court.

1. There are several assignments of error based upon the contention that the jury was not drawn, selected, constituted, and summoned as required by law.

(a) One of these objections is based upon the fact that, at the time the list of jurors to be summoned for this case was drawn at the Alleghany courthouse, the judge was there engaged in the courtroom holding a special term of court, and the claim is made that it was necessary for him to be personally present at the drawing, which occurred in the clerk's office.

Code, § 4S95, provides that such drawing shall be in the presence of the judge of the court, but, if he is absent, then the names of those to be summoned may be drawn in the presence of a commissioner in chancery and a reputable citizen, or, if the presence of a commissioner cannot be obtained, it may be in the presence of two reputable citizens. The contention is that, because the judge was at Alleghany courthouse, in court, therefore it should be held that he was not absent within the meaning of this statute. We decline so to construe it. The jury box and list are in the custody of the clerk in the clerk's office, and, unless the judge's actual, presence in the clerk's office can be secured, he is absent within the meaning of this statute. When he is presiding in court, though in the same county, he is absent performing a conflicting duty, one which he only at the time can perform, and the other provisions of the statute for the drawing of juries became operative. So there was no irregularity.

(b) It further appears that this regular venire facias was exhausted, and so it became necessary to obtain additional jurors duly qualified and free from legal exception for the trial of this case, and such additional jurors were obtained from a list of talesmen summoned under a venire facias which had been issued, returnable to the same term of court, for the trial of Walter Tinsley, who was also charged with a felony. That this is expressly authorized by Code, § 4895, is shown by that clause, which provides that at one term of the court only one jury shall be summoned, unless the court or judge thereof otherwise direct, and the jury so summoned may be used for the trial of both felonies and misdemeanors. Two venires had been issued for the trial of felony cases at that term, and, even without the clause of the statute to which we will hereafter refer, the action of the court furnishes no ground for reversal.

(c) After the exhaustion of these venires, the panel was still incomplete, and so it was necessary to summon more jurors. It is complained that in getting these additional jurors the judge selected them from the names on the list provided for by statute, instead of having these additional names drawn by lot from the box. This was not an irregularity, but done strictly in accordance with Code, § 4896.

Reverting to all three of these alleged irregularities, we think it only necessary to again refer to the statute, and to cite the two latest cases which have construed it. The statute, Code, § 4895, provides:

"No irregularity in any writ of venire facias or in the drawing, summoning, returning, or impanelling of jurors, or in making out or copying or signing or failing to sign the list or in drawing more persons than four in excess of the number to be summoned, shall be cause for summoning a new panel or for setting aside a verdict or granting a new trial, unless objection thereto specifically pointed out, was made before the jury was sworn, and unless it appears that such irregularity, or error, or failure, was intentional or such as to probably cause injustice to the commonwealth or to the accused. * * * "

We have construed this statute in Jarrell v. Commonwealth, 132 Va. 551, 110 S. E. 430, and Wallen v. Commonwealth, 134 Va. 779, 114 S. E, 786, and held it fully effective. The only reason we have thought it necessary to say anything more about it is to emphasize what we have there said so as to save the learned counsel and ourselves from further repetitions about such objections. We propose to bear that statute in mind and to require those who rely upon insignificant irregularities to show either abuse of power or some other substantial injustice to the accused.

2. One of the exceptions is to the action of the trial court in permitting the prosecution to prove by the order book of the circuit court of Alleghany county that at the October term', 1920, the deceased, McMannaway, presented a certificate showing his appointment as a prohibition inspector to hold his office during the pleasure of the commissioner, showing his qualification as such in-spector by taking and signing the oaths prescribed by law. This exception is not argued, and the admission of this evidence is so clearly correct that nothing further need be said about it.

Another assignment is based upon a bill of exceptions complaining that the court admitted evidence of statements of the accused heretofore recited, clearly indicating that it was his purpose to resist by violence any attempt of the officers to arrest him for his violations of the prohibition law. The ground seems to...