Parsons v. Commonwealth

• Decision Date: 17 January 1924
• Citation: 121 S.E. 68
• Parties: PARSONS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

121 S.E. 68

PARSONS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 17, 1924.

Error to Circuit Court, Northampton County.

Charles W. Parsons was convicted of murder in the first degree, and brings error. Reversed.

John L. Lee, of Lynchburg, James E. Heath, of Norfolk, and S. James Turlington, of Accomac, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

PRENTIS, J. The accused has been convicted of murder in the first degree, and sen-fenced to confinement for life in the state penitentiary.

During the nation-wide strike of railway employees in 1922 he killed George R. Lewis, a native of Northampton county, and a resident of Cape Charles, who was one of the strikers, under circumstances which natturally aroused a very strong local prejudice against him on account of his offense. He is here seeking a reversal of the judgment, and assigns a number of errors.

1. The first assignment of error is based upon the refusal of the trial court to sustain the petitioners motion for a change of venue. This motion is supported by the affidavits of 15 citizens of the county to the effect that it was impossible for the accused to have a fair trial there, and that, even if a jury could be procured from some other county, they would be so influenced by the prejudice against the accused as to deny him a fair and impartial trial. For the commonwealth, in opposition to this motion, there was testimony that there could be a fair trial in that county, but even these witnesses admitted the existence of local prejudice against the accused.

The motion is strongly supported, but matters of this sort must be generally referred to the discretion of the trial judge, and this court will not interfere with that discretion unless it has been clearly abused.

The rule is thus recently stated in Taylor v. Commonwealth, 122 Va. 889, 94 S. E. 796:

"This court has repeatedly held, and it is the established rule in Virginia, that the trial court must be allowed a wide discretion in deciding motions for change of venue or for a jury from another county; and, moreover, that where the motion is based on the ground that an impartial jury cannot be obtained in the county, the fact that an impartial jury has subsequently been secured therein is conclusive proof that the motion was without foundation."

Applying this rule, we hold that this assignment is not well taken.

2. The basis of another assignment of error is the acceptance of Walter M. Hurt and Charles B. James on the panel of 20 held to be free from exception, from which the jurors were selected.

The cases on this subject in Virginia, as was said by Keith, P., in McCue v. Commonwealth, 103 Va. 9S8, 49 S. E. 625, cannot be reconciled, and much must be left to the discretion of the trial judge. The question has been recently reviewed in Rust v. Reid, 124 Va. 17, 97 S. E. 324. No inflexible rule can be framed, but certainly the character of the case to be tried should affect the decision. In this case, in which the killing of an unarmed man by the accused was unquestioned, and had so excited the public, extraordinary care should have been taken to secure a fair and impartial jury to determine the degree of the crime. This court, in obedience to the statute, which accords with its own view of sound public policy, has gone far to maintain the sanctity of verdicts; but such a sanctity can only, be accorded where the talesmen, when they are accepted in the particular case, have been first shown to be free from legal exception.

The record shows that several of the panel summoned were rejected by the trial court for reasons which seem to us no stronger than the reasons here assigned for rejection of the two just referred to.

This is the pertinent part of the examination of Hurt upon his voir dire:

"Q. Have you heard or read what purported to be a statement of the facts and circumstances attendant upon the homicide in question?

"A. Yes, sir.

"Q. Have you heard any such account from one who claimed to have been an eyewitness to the killing?

"A. No, sir.

"Q. You have merely heard it and read of it as the average citizen has read the startling event that has occurred in your community?

"A. Yes, sir; that is all.

"Q. From what you have read or heard with reference to the matter, have you formed or expressed, or do you now entertain., any opinion as to the guilt or innocence of the accused?

"A. Yes, sir; I have an opinion.

"Q. Mr. Hurt, would that opinion govern you or influence you in your deliberation if you were chosen on this jury?

"A. No, sir; not with different evidence.

"Q. That opinion would not influence you?

"A. No, sir; it would not.

"Q. Then you think, if selected and sworn as a juror in this case, that you could try this case in utter disregard of any previous information or opinion of yours, and base your action solely upon the evidence, do you?

"A. Yes, sir; it is no reason why I shouldn't.

'Q. Then that opinion is not such a fixed and substantial and determined one that would take evidence to remove?

"A. No, sir."

Upon cross-examination this appears:

"Q. You say you have formed an opinion? "A. Yes, sir.

"Q. Have you also expressed that opinion? "A. I don't think so.

"Q. Is that.opinion fixed and abiding with you now?

"A. Yes, sir; under the evidence that I have heard.

"Q. Then you have a fixed and abiding opinion? "A. Yes, sir.

"Q. If you were to go upon this jury you would carry to the jury box that opinion?

"A. I would carry it before new evidence.

"Q. You would carry that opinion in your mind just as it is now?

"A. Until I heard other evidence.

"Q. In other words, if you were taken upon this jury you would go upon the jury with that opinion in your mind?

"A. Yes, sir.

"Q. And it would require evidence to change your opinion? "A. Yes, sir.

"Q. Is it so fixed in your mind now that it would require testimony to remove that opinion from your mind?

"A. Yes, sir.

"Q. So to the extent that you have that opinion you would go upon the jury biased by evidence?

"A. Yes, sir."

The talesman being then challenged, the court pursued the examination thus:

"Q. The court wishes, in your answers to these questions, to impress upon you that this is a serious and far-reaching matter of importance to you, to the commonwealth, and to the prisoner. The court understood you, Mr. Juror, that the opinion you had formed and which you now entertain was hypothetical; in other words, it was based upon the alleged facts that you had heard?

"A. Yes, sir.

"Q. But that would in no wise interfere with you when you come to hear the actual evidence as to the actual facts as detailed by the witnesses on the stand?

"A. Yes, sir.

"Q. Then do you feel, Mr. Hurt, that, notwithstanding the opinion you have formed— you say you have not expressed it—do you feel that, notwithstanding that, that you can enter upon this service as a juror in this most important case and disregard the opinion you have formed, but let your deliberations and your actions hinge and depend upon the evidence that you hear on the stand?

"A. Yes, sir; I feel that I could.

"Q. You feel that you could give the prisoner a fair and impartial trial, notwithstanding the opinion you have formed?

"A. Yes, sir."

If this talesman, out of his own consciousness and appreciation of the inquiry, had said affirmatively that the opinion which he had previously formed was hypothetical, being only based upon alleged facts, and that it would in no wise interfere with him when he came to hear the evidence from the witnesses as to the actual facts, and that he felt, notwithstanding his opinion, that he could enter upon the service as a juror and disregard his previous opinion and let his deliberations depend upon the evidence heard in the courtroom, and that he. felt he could give the prisoner a fair and impartial trial notwithstanding the opinion he had previously formed, then he would have been a competent juror. It is observed, however, that these qualifying facts did not emanate from him, but were suggested by the leading, argumentative, and persuasive questions which were addressed to him. All that he did was to assent thereto. We will go far to sustain the trial judges in their effort to select impartial jurors, because their task is frequently difficult, and exceptions are frequently frivolous. Sometimes it is made more difficult than it otherwise would be because the persons summoned desire to evade jury service. In such instances the conscience of the venireman should be probed, and, if, not withstanding his previous expressions of opinion based upon common rumor, he is nevertheless fair and unprejudiced, he should be accepted as qualified. The true test, however, lies in the mental attitude of the proposed juror, and the proof that he is impartial and fair should come from him, and not be based on his mere assent to persuasive suggestions.

The examination of the other talesman, James, is quite similar. He had both formed an opinion and expressed it, and said he would go into the box in such a frame of mind that it would require evidence to change that opinion.

We do not mean to say that the selection of jurors such as these would in every case be held by us to constitute reversible error. As we have indicated, however, this was an unusual case, and, the prisoner having shown the existence of strong local prejudice against him, with which both Hurt and James seemed to be familiar, there should have been a greater effort to secure jurors who were free from exception. Fourteen talesmen of the second venire had not been examined, and they presumably were in the courtroom. There is little reason to doubt that from these the necessary panel of 20 could have been easily secured.

3. Another exception is based upon the exclusion of certain testimony. The witness Taylor had testified that on July 1, 1922, he had overheard a conversation between the defendant, Charles W. Parsons, and the deceased, George R. Lewis, in which the latter had...