Slater v. Commonwealth

• Decision Date: 01 May 1944
• Citation: 29 S.E.2d 853
• Court: Virginia Supreme Court
• Parties: SLATER. v. COMMONWEALTH.

29 S.E.2d 853

SLATER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 1, 1944.

HUDGINS and GREGORY, JJ, dissenting.

Error to Circuit Court, Wythe County; John S. Draper, Judge.

George Slater was convicted of grand larceny of an automobile, and he brings error.

Reversed and remanded for a new trial.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

S. B. Campbell, of Wytheville, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen., for the Commonwealth.

CAMPBELL, Chief Justice.

The accused was indicted for the larceny of an automobile, the property of one Louis Hyatt. Upon his trial by a jury, he was found guilty of grand larceny and his punishment fixed at three years' confinement in the penitentiary. Judgment was entered in accordance with the finding of the jury.

This writ of error is to that judgment.

The dominant assignment of error is the refusal of the trial court to quash the writ of venire facias.

The facts touching this assignment of error are as follows: After the jury had been sworn upon their voir dire, and before the jury had been sworn to try the case, the defendant, by counsel, moved the court to quash the writ of venire facias because it was not attested by the clerk, as required by section 106 of the Constitution of Virginia. Thereupon, in chambers, the court, in the absence of the accused, examined the clerk on oath and had him to compare the unsigned venire facias with the list of jurors drawn from the jury box. The clerk testified that the same names were on the unsigned venire facias, whereupon the court permitted the clerk to sign the writ of venire facias and proceed with the trial of the case.

Section 106 of the Constitution reads as follows:

"Writs shall run in the name of the 'Commonwealth of Virginia, ' and be attested by the clerks of the several courts. Indictments shall conclude 'against the peace and dignity of the Commonwealth.' "

It is beyond question that the imposition of the duty upon the clerk to attest the writ is mandatory. This is made manifest by section 198 of the Constitution, whichreads, inter alia: "In conferring a power or imposing a duty, 'may' is permissive and 'shall' is mandatory."

While this court has not heretofore been called upon to pass upon the identical question herein involved, it has construed the last sentence of section 106 relative to indictments.

In Guynn v. Commonwealth, 163 Va. 1042, 177 S.E. 227, Judge Chinn, speaking for the court, said:

"It is well settled in this state that each and every count in an indictment must conclude with the words 'against the peace and dignity of the Commonwealth, ' as required by section 106 of the Constitution, and the omission of such conclusion renders such indictment or count therein, as the case may be, fatally defective, " citing Commonwealth v. Carney, 4 Grat. 546, 45 Va. 546; Thompson v. Commonwealth, 20 Grat. 724, 61 Va. 724; Early v. Commonwealth, 86 Va. 921, 11 S.E. 795. See also Brown v. Commonwealth, 86 Va. 466, 10 S.E. 745.

By the same token it follows as a corollary that when the mandatory provision of the Constitution provides that writs shall run in the name of the Commonwealth and by unequivocal implication shall be attested by the clerk, a writ not so attested by the clerk, when issued, is fatally defective.

If a writ be dead, it is impossible to breathe into it the breath of life. However, it is the contention of the Attorney General that the writ is merely dormant and that under the provisions of section 4895 of Michie's Code, the court had the power to revivify the writ by permitting the clerk to attest it in the absence of the accused. Section 4895 is an amendment of section 4018 of the Code of 1887.

In Looney's case (Looney v. Commonwealth), 115 Va. 921, 926, 78 S.E. 625, 627, it appears that counsel for accused moved the court to quash the venire facias on the ground that it contained more than twenty names, as provided by the statute. In that case the contention was made that the curative provision of the statute was effective. The trial court so held and permitted the writ to be reformed.

In holding that the court committed reversible error, Judge Whittle said:

"The concluding paragraph of the section declares that no irregularities or er rors in drawing the names or in making out or copying or signing or failing to sign the list, or in summoning the persons named in the list, shall be cause for * * * granting a new trial, unless objection thereto was made before the jury was sworn, and unless it appears that the irregularity, error, or failure was intentional, or was such as to probably cause injustice to the commonwealth or to the accused.

"The record shows a plain departure from imperative provisions of the statute in several essential particulars. No good cause, or indeed any cause, was shown for directing more than 20 names to be drawn and placed in the list to be summoned. Nevertheless the second list of veniremen contained the names of 60 persons, and the order of the court and venire facias directed the officer to summon only 30 from the list. Moreover, the mandatory provision of the law, that, when more than 20 persons are ordered to be drawn and summoned, the number drawn shall in no case be more than 4 in excess of the number to be summoned, was wholly disregarded.

"The manifest object of the foregoing provision of the statute is to secure a drawn list of veniremen and to render it impossible to pack the jury."

In Jones' case (Jones v. Commonwealth), 100 Va. 842, 846, 41 S.E. 951, 952, it was held that omission of any statutory essential, apparent on the record, is error.

In Hoback's case (Hoback v. Commonwealth), 104 Va. 871, 877, 52 S.E. 575, 577, Judge Harrison quotes with approval the following language from the Jones' case, supra:

" 'These provisions of the statute in respect to impaneling juries are not directory merely, but imperative. They are rules which are made...