State Of West Yirginia v. Cartright.

• Decision Date: 01 July 1882
• Citation: 20 W.Va. 32
• Court: West Virginia Supreme Court
• Parties: State of West Yirginia v. Cartright.

20 W.Va. 32

State of West Yirginia

v.Cartright.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1882

Decided July 1, 1882.

Challenge to the array of the jury must be based on some irregularity affecting the whole panel, such as a failure to select or summon them as required by the statute, or where there is partiality, relationship or default in the officer, who made the return, &c. (p. 36.)

2. A motion to quash an indictment for defects on its face, where the motion is general, will be overruled, if the indictment contains one good count, (p. 39.)

3. Generally the mere separation of the jury, after they have been empanelled, without the attendance of the officer or misconduct of the jury in the presence of the officer, though improper and irregular, is not a sufficient cause for setting aside the verdict, especially in cases not capital, if the court is satisfied, that the prisoner has sustained no injury from such separation or misconduct, (p. 41.)

4. But where there has been an improper separation or misbehavior of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of the presumption, that the irregularity has been prejudicial to him; and the burden of proof is upon the prosecution to show beyond a reasonable doubt, that the prisoner has suffered no injury by reason of the separation or misbehavior. If the prosecution fails to do this, the verdict should be set aside, (p. 41.)

5. Except in very special cases the testimony of jurors ought to be admitted, generally, only in support of their verdict in cases, where facts come to the attention of the court regarding the conduct of the jury, or of one or more of its members, which prima facie vitiate the verdict. In such case any juror or all the members of the jury severally may state any tacts or circumstances within his own knowledge tending to explain such conduct, or which may tend to remove the presumption of the invalidity of the verdict; but his testimony should not be received to show, by what motives he was actuated, or that any admitted fact, misconduct or irregularity had no influence or effect in producing the verdict. He should be admitted only to disprove or explain such fact, misconduct or irregularity; and if such fact, misconduct or irregularity be not disproved or explained, so that the court is satisfied beyond a reasonable doubt, that no injury was caused thereby to the accused, the verdict should be set aside, (p. 43.)

6. Even in such cases the testimony of jurors should be received with great caution, (p. 43.)

7. On the trial of an indictment for a felony, after all the evidence has been heard by the jury, and they have been put in charge of the officer for the night, the said officer at the instance of some of the jury brings to the jury-room one of the principal witnesses for the prosecution, who was an active participant in the tight, which caused the indictment, to play the fiddle for the jury. Said witness came into said room and remained there with the jury and the officer for half an hour fiddling for the jury; and in response to an enquiry from a brother of said witness, who came to the jury-room, while said witness was in the room with the jury, said officer stated, that said witness was not in the room. Afterwards the jury heard the argument of counsel and returned a verdict of guilty. On a motion to set aside the verdict the jury and the officer file affidavits, that no conversation or communication was had between the jury and said witness touching the trial or in any manner whatever, and that the presence or conduct of said witness had no influence on their verdict; but the affidavit of said witness was not taken, nor was any excuse offered for not taking it. This was ground for setting aside the verdict, (p. 44.)

"Writ of error and supersedeas to a judgment of the circuit court of the county of Marion, rendered on the 23d day of December, 1881, in an action in said court then pending by the State of West Yirginia against Thomas Cartright upon an indictment for felony, allowed upon the petition of said Cartright.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case fully appear in the opinion of the Court,

James Morrow, Jr., for the plaintiff in error, cited the following authorities: Code ch. 144 § 9; 24 Graft. 644; 23 Gratt! 27; 22 Graft. 907; 13 W. Ya. 859; 2 Tuck. Com. 303; Whart, Cr. PL & Pr. § 607; 18 Graft. 983.

Attorney General Watts for the State cited the following authorities: Archb. 6,-Cr. PL & Ev. (10th London ed.) 449; 1 Moody 318; 2 Bish. Cr. Pro. § 654; 5 W. Ya. 511; 4 Blackst. Com. 352; 3 Blackst, Com. 359; Id. 354; Min. Cr. Pr. 249; Whart, Cr. PI. & Pr. (8th ed.) § § 848, 849; 1 Bish. Cr. Pr. § 999 and n. 4; 19 Graft. 540; 107 Mass. 453; 57 Mo. 40; 28 Ark. 155; 7 W. & S. 421; Whart, Cr. PL & Pr. § 843, n. 1.

Snyder, Judge, announced the opinion of the Court:

On the 22d day of Xovember, 1881, Thomas Cartright was indicted in the circuit court of Marion county under the provisions of section 9 chapter 144 of the code of this State. The indictment contains two counts. The first charges, that said Cartright, on the 29th day of October, 1881, in said county, in and upon one John Cunningham, did make an assault and him, the said John Cunningham, "feloniously and maliciously did stab, cut and wound with intent him, the said John Cunningham, then and there to maim, disfigure, disable and kill," &c. The second count is the same as the first except for the words above quoted, it uses the words," unlawfully but not maliciously did stab, cut and wound with intent him, the said John Cunningham, then and there to maim, disfigure, disable and kill," &c.

The defendant moved said court, on the 26th day of November, 1881, "to quash said indictment," and pleaded not guilty. On December 15th the court overruled said motion, and thereupon the defendant challenged the array of jurors summoned for that term and then in attendance for the trial of the defendant, and moved the court to set aside the panel and award a venire de novo, upon the ground that one of said panel, who was a brother of the prosecuting witness, had been active in assisting to obtain witnesses for the State and pressing the trial of defendant, and had been industriously seeking to poison and influence the minds of said panel against the defendant, and that two of said panel had been summoned as witnesses in the case for the State, which motion, upon demurrer by the State, the court overruled and refused to set aside the panel. "And the court then proceeded to draw and empanel a jury of twenty men free from exception in the manner prescribed by law, and having exhausted the panel of regular jurors in attendance and only having obtained seventeen free from exception, the court directed the sheriff of the county to summon additional jurors; and three additional jurors having been so obtained, making a full special panel of twenty jurors free from exception, thereupon the prisoner assisted by his attorneys struck off eight and the twelve not stricken off" composed the jury, which tried the defendant, The jury were sworn and the trial commenced on the 15th of December, 1881; and on the 20th of December the following verdict was returned: "We, the jury, find the defendant, Thomas Cartright, not guilty ol maliciously cutting, stabbing and wounding John Cunningham, with intent to maim, disable, disfigure and kill, as charged in the within indictment, hut we "find said Thomas Cartright guilty of unlawfully and feloniously cutting him, the said John Cunningham, with intent him, the said John Cunningham, to disfigure, disable and kill, and we fix and ascertain his term of imprisonment in the penitentiary of this State at fifteen months."

The defendant moved the court to set aside the verdict and grant him a new trial and also moved for an arrest of judgment, which motions the court severally overruled and pronounced judgment against the defendant on said verdict; and the defendant on petition to this Court obtained a writ of error.

Neither the facts proved nor the evidence heard on the trial nor any part of either appear in the record. After the verdict was rendered, and while the motion to set aside the verdict was pending, certain affidavits in support of and against said motion relating to the conduct of the jury were read and made part of the record by bill of exceptions. The facts contained in said affidavits will be hereafter stated.

The plaintiff in error assigned four grounds of error for wdiieh he insists this Court should reverse said judgment.

First He contends, that his challenge to the array of the jury should have been sustained, and the panel set aside. A reference1 to the facts upon which this challenge was founded, will show that they consist entirely of objections to three members of the panel. These grounds were no doubt good against these particular jurors, of wdiieh the defendant evidently availed himself in the selection of the panel of twenty free from exception, but they do not constitute a basis for a challenge to the array. Challenge to the array must be based upon some irregularity affecting the whole panel, such as a failure to select or summon as required by the statute, or on account of the partiality, relationship, or default of the officer who made the return, or any other ground, which would tend to show, that the panel was not fairly and legally constituted Whart. Cr. PI. & Pr. § 607; 3 Bla. Com. 359."

We are, therefore, of opinion that the court did not err in disregarding: said challenge.

Second It is claimed, that the defendant's motion to quash the indictment should have been sustained, because the second count was fatally defective: The motion to quash was general as to the whole indictment, and such motion can have no greater effect in this case than a general demurrer. It is a well settled principle of law,...