Richardson v. Commonwealth

• Decision Date: 07 August 1882
• Parties: W. R. RICHARDSON v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

76 Va. 1007

W. R. RICHARDSON v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

August 7, 1882

Error to refusal of the honorable judge of the circuit court of Smyth county to grant a writ of error to a judgment of the county court of said county, on an indictment against W. R Richardson, a distiller, for selling liquor in quantities less than one gallon. Defendant filed three pleas in abatement to the indictment on account of irregularities in the formation and action of the grand jury which found the indictment. He also demurred to the indictment, and plead " not guilty." At the trial the court instructed the jury as indicated in the syllabus. Verdict of guilty, and a fine fixed at $100, and judgment accordingly. The defendant obtained a writ of error and supersedeas from one of the judges of this court.

Robert A. Richardson, for the appellant.

Attorney-General F. S. Blair, for the Commonwealth.

OPINION

ANDERSON J.

The court is of opinion that there is no error in the ruling of the court below rejecting the first plea in abatement. The statute expressly authorizes and requires the court, if a sufficient number of the jurors summoned are not in attendance to constitute a grand jury, to cause a sufficient number to be returned from the bystanders, or from the county or corporation at large. They may be summoned from a list, but the judge, if he thinks proper, is expressly authorized to dispense with the list. Code of 1873, ch. 200, § 5.

The court is further of opinion that the court did not err in rejecting the defendant's second plea in abatement. The fact that two of the jurors who were members of the grand jury which found the indictment against the defendant, had served on another special grand jury at the same term of the court, did not disqualify them to serve upon the grand jury which found the indictment. How they voted upon the indictment as members of the former grand jury, was a matter which could not be properly inquired into.

The court is further of opinion that there is no error in the ruling of the court below rejecting the defendant's third plea in abatement. There is no case that we are aware of which has held that the indictment by a grand jury is vitiated merely because the sheriff or his deputy were in their room while they were deliberating and examining witnesses upon whose testimony the indictment was found. They are officers in attendance upon the grand jury, and in the performance of their duties it is often necessary for them to enter the grand jury room, and it may be whilst they are engaged in deliberating or hearing testimony on the case before them. There is no averment or intimation in the plea that they exerted or attempted to influence the jury in any way in the formation of their opinions.

After the jury had retired to consider of their verdict, they sent into the court the following question: " As a distiller has the defendant a right to sell one gallon of liquor, receiving pay therefor and delivering it in less quantities at...