Robinson v. Commonwealth

• Decision Date: 06 December 1943
• Court: Virginia Supreme Court
• Parties: ROBINSON. v. COMMONWEALTH.

182 Va. 42

28 S.E.2d 10

ROBINSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 6, 1943.

Error to Circuit Court, Fairfax County; Walter T. McCarthy, Judge.

Leonard R. Robinson was convicted of rape, and he brings error.

Reversed and remanded.

Before CAMPBELL, C. J., and HUD-GINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Charles Henry Smith, of Alexandria, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

This writ of error brings under review the record of a trial, in which the accused was convicted of rape and sentenced to confinement in the penitentiary for fifteen years.

It is not necessary to discuss the facts, as it is conceded that the evidence for the Commonwealth, while in conflict with the evidence for the accused, is sufficient on review to support the verdict. The only question presented is whether the trial court committed reversible error in permitting the jurors, after they had been sworn and had heard part of the evidence, to separate and to return to their respective homes for the night.

Prior to 1878, the common-law practice prevailing in Virginia required the jurors to be kept together during the entire trial of a person charged with the commission of any felony. No outside communication could be had with the jurors except in case of emergency or imperative necessity. This practice was based upon the principle that the accused, in every felony case, was not only entitled to a jury free from exception when impanelled to try his case, but that he had a right to have them remain so until the verdict was rendered by keeping them free, as far as possible, from all extraneous influences. This common-law practice is still in force in Virginia, except as modified by statute.

The first modification of the rule is found in Acts of 1877-78, sec. 10, pp. 341-2, providing that " * * * where the punishment cannot be death or confinement in the penitentiary ten years, the jury shall not be kept together, but shall be treated as jurors in civil cases, unless the court direct otherwise."

In 1893, this section was amended (Acts 1893-4, p. 223) to include juries sworn to try felony cases where the maximum punishment was fixed at ten years or less.

The third and last change in the statute is found in the Acts of 1922, p. 545 (Michie's Code 1942, sec. 4902), which provides: "In any case of felony where the punishment cannot be death, the jury shall not be kept together unless the court otherwise directs."

The Barnes' case (Barnes v. Commonwealth), 92 Va. 794, 23 S.E. 784, was decided December 12, 1895. In the opinion delivered by Judge Buchanan, 92 Va. at page 803, 23 S.E. at page 787, it is said: "In a prosecution for a felony, in this state, where the punishment may be death, or confinement in the penitentiary for more than 10 years, the jury must be kept in the custody of the sheriff, or other proper officer, when not in the presence of the court; and their separation out of his custody and control, is prima facie sufficient to vitiate the verdict."

The case was reversed on the ground that it did not affirmatively appear from the orders entered by the trial court that the jury had been placed in charge of an officer of the court with instructions to keep the jury together, and "neither speak to them yourself, nor suffer any other person to speak to them, touching any matter relative to this trial, until they return into court."

Judge Riely dissented from the holding of the majority on the sole ground, as stated by him: "It is a proper and well-established practice that the jury, upon an adjournment, should be placed in the custody of the proper officer, and kept together, free from all extraneous influences, but it is not a necessary part of the record to sustain the judgment. It is * * * one of the incidents of the trial, that this court should presume was regular, unless the contrary appears."

In the Barnes' case the Commonwealth offered to prove that at every adjournment of court the jury trying the case were put in the custody of the sheriff, who was duly sworn, and that he kept them together during adjournment and turned them into court in his custody according to instructions. This court held that the trial court, after final judgment, had no right to amend the record by showing that the proper steps had been taken during the progress of the trial. While subsequent opinions show a tendency to follow the views expressed in Judge Riely's dissent, the opinions reveal the emphasis which this court has placed upon the necessity of taking every reasonable precaution to prevent the possibility of a jury being swayed by extraneous influences...