Sands v. Commonwealth

• Decision Date: 24 January 1872
• Citation: 62 Va. 871
• Parties: SANDS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 871

SANDS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 24, 1872

1. The list given by the judge to the officer, from which the officer is to summon jurors for the trial of a prisoner for felony, contains but twenty-four names, and the officer returns the names of nineteen of them whom he has summoned and of five as not found. Though it would be better for the judge to put more than twenty-four names on the list, it is not error to give but twenty-four, and the return of the officer that he has summoned less than the twenty-four, and the others were not found, is a valid return.

2. The court before which a prisoner is arraigned for trial, if qualified jurors not exempt from serving cannot be conveniently found in the county or corporation, may send to another county or corporation for such jurors.

3. A person who is qualified to vote by the constitution of Virginia, is a competent juror, though he is disabled from holding office by the fourteenth amendment of the constitution of the United States. The provision in the State constitution, article 3, § 3, has reference to the disability to hold office under that constitution, that provision of which was stricken out by the vote of the people.

4. Upon an indictment against a person for a conspiracy to commit a felony, or for the felony so actually committed, the acts and declarations of another of the conspirators, though not in the presence of the prisoner or afterwards reported to him are evidence against him; and this though the acts and declarations were done or made before the prisoner became a party to the conspiracy, if done or said in furtherance of the common object.

5. In order to the admissibility of such evidence, it must be shown, first, that the persons whose acts or declarations are sought to be made evidence, was, at the time of making or doing them, himself a conspirator; and, second, that they were done or said in furtherance of the object of the conspiracy.

6. The guilty knowledge of the act done by the conspirators is a necessary element of their guilt, without proof of which there can be no conviction. But it is not necessary to prove that this guilty knowledge was imparted to all of them at one and the same time, and by one and the same means. It is only necessary to show that each of the conspirators had this guilty knowledge, no matter how, when or where he acquired it.

7. The fourth point in Chahoon's case reaffirmed.

This is the sequel of the case of Sands v. The Commonwealth reported 20 Grattan 800. When the cause went back, the prisoner was put upon his trial at the May term of the court for 1871, and that trial lasted for twelve days; and the jury not agreeing upon a verdict, were discharged, and the case was continued. The prisoner was again put upon his trial at the September term of the court. He then moved the court to quash the writ of venire facias issued in the cause and the return thereon, for errors upon the face thereof, and because the writ was not issued according to law. The writ commands the officer to summon twenty-four persons of the corporation to be taken from a list to be furnished him by the judge of said court, and are qualified in other respects to serve as jurors, & c. It was dated the 7th of August 1871, and returnable to the September term of the court. On this writ the officer returned the names of nineteen persons who had been summoned by him from the list furnished him by the judge; and he returned the names of five persons, on the list so furnished him, as not found. The court overruled the motion; and the prisoner excepted. This is his first exception.

Of the nineteen persons summoned, eighteen appeared and were found to be disqualified, for having formed and expressed opinions in reference to the case. The court thereupon expressed the opinion that it would be proper to send to some other county or corporation for a jury. To which the prisoner objected until further efforts were made to obtain a jury in this city. But the court refused to endeavor further to obtain a jury in the city, and ordered writs of venire facias to the towns of Staunton and Charlottesville; and the prisoner again excepted. The evidence is stated by Moncure P., in his opinion. This is his second exception.

After the foregoing exception had been taken, and before the court had issued the said writs of venire facias to Staunton and Charlottesville, the prisoner moved the court to change the venue of this case to some other county or corporation, where a more impartial jury might be had than in this city; insisting that if the court was correct as to the state of public sentiment in the city, then it was not a fit and proper place for a jury to sit on the trial of the prisoner, even though the jurors should be brought from elsewhere. But the court being of opinion that a fair and impartial trial could be had in the city by a jury from a distance, overruled the motion; and the prisoner again excepted. This is his third exception.

After the officers had made return upon the writs of venire facias, and before the court had proceeded to call the jurors under these writs, the prisoner moved the court to quash both of said writs and the returns thereon for errors and irregularities apparent thereon, and because the same were issued without any constitutional or legal authority. But the court overruled the motion; and the prisoner again excepted. This is his fourth exception.

Upon the call of the jurors, J. B. Sherer, one of the jurors summoned on the venire facias to the town of Staunton, being called, was examined on his voir dire, and in response to questions by the court, stated that he had formed and expressed no opinion as to the case, and was about to be accepted as a juror, when he stated, voluntarily, that he did not consider himself a competent juror, upon the ground that he had held the office of justice of the peace of the town of Staunton in the years 1858 and 1859, and he had never applied for or had his disabilities under the fourteenth amendment of the constitution of the United States removed. He stated further that he had been duly registered as a voter of the town of Staunton under the present State constitution. The prisoner thereupon objected to said juror as not competent to serve in the case. But the court overruled the objection; and the prisoner excepted. This is his fifth exception.

In the progress of the trial, after a number of witnesses had been examined, whose testimony is set out at length, John W. Cole was introduced as a witness; and after some previous questions, and having had the paper alleged to have been forged shown to him, the attorney for the Commonwealth propounded to him the following question: Did you have any conversation with R. D. Sanxay concerning the bond for seven thousand dollars, which has just been shown to you, in the year 1866; if so, state the conversation?

To this question and any answer thereto, the prisoner objected, in the absence of any statement by the Commonwealth's attorney that he expected to follow the question up by proof either that the prisoner was present at the said conversation, or that, if absent, he was afterwards informed of the said conversation and its purport; and in this connection it was admitted that the said R. D. Sanxay died in the year 1868; and the attorney for the Commonwealth stated that he expected to introduce further evidence tending to prove that the said R. D. Sanxay, curator, and the accused, his counsel, afterwards conjointly uttered and employed the said forged bond as true, knowing it to be forged. The court overruled the objection; and the prisoner again excepted. This is his sixth exception.

The witness then proceeded to state two conversations which he had with Sanxay; and afterwards a number of other witnesses were examined for the Commonwealth, and among them Charles H. Page, who testified as to a conversation he heard between the prisoner, George Chahoon and Thomas R. Bowden.

When the evidence for the Commonwealth was concluded, the prisoner moved the court to exclude from the jury, and to direct them to disregard so much of the evidence of Cole as purports to detail two conversations between Richard D. Sanxay and the said Cole concerning the note, bond or claim against Haunstein's estate, upon the ground particularly that the same was not held in the presence of the prisoner, and that it does not appear that he was ever informed of the fact that the conversations had taken place, or of their purport; and that the same are not competent for any purpose in this prosecution. And the prisoner also moved the court to exclude from the jury, and direct them to disregard so much of the testimony of Charles H. Page as relates to the conversation between the prisoner, George Chahoon and Thomas R. Bowden, upon the ground that it does not sufficiently appear that the said conversation had any relation to the bond of Solomon Haunstein, specified in the indictment, or to the charges against the prisoner as contained in the second and fourth counts of the indictment, upon which alone he is now on trial. But the court overruled both of said motions; and the prisoner again excepted. This is his seventh exception. The evidence in relation to the sixth and seventh exceptions is sufficiently stated in the opinion of Moncure, P.

After the foregoing proceedings, the prisoner introduced several witnesses, whose testimony is set out, and among others Alexander R. Holladay, a lawyer practising in the city, who was examined as to the character of the prisoner, and as to the propriety of the action of counsel in certain circumstances; and upon his cross-examination, the attorney for the Commonwealth propounded to him the...