State v. Davis

• Decision Date: 30 June 1888
• Citation: 7 S.E. 24,31 W.Va. 390
• Parties: STATE v. DAVIS.
• Court: West Virginia Supreme Court

7 S.E. 24

31 W.Va. 390

STATE v. DAVIS.

Supreme Court of Appeals of West Virginia.

June 30, 1888

Submitted June 8, 1888.

Syllabus by the Court.

It is within the sound discretion of the court in the trial of a felony case, if a juror, at any time after he is sworn, and before verdict, becomes, from any cause, unable to discharge his duties as such juror, to discharge such juror, and substitute another qualified juror in his place; and when such substitution is made, the trial shall proceed just as if it had then commenced before a new jury. ^[1]

Where after the greater part of the evidence had been heard in a felony case, the information was imparted to one of the jurors that his son had just died, and the court certified that it "appeared to the satisfaction of the court that the juror, by reason of his affliction, was unable to discharge his duties as a juror," and discharged the juror at his request, held, a necessity for the discharge of the juror existed, and he was properly discharged.¹

After such discharge, another qualified juror was substituted, and the trial proceeded de novo, and the prisoner was convicted, and moved for his discharge on that ground, which motion was overruled, and the prisoner sentenced. Held, no error; also that it was no ground for a new trial.¹

Where upon a trial for malicious cutting with intent to kill, the jury find "the defendant not guilty as charged in the indictment, but find the defendant guilty of unlawful cutting, "it is proper for the prosecuting attorney to put it in proper form, finding the defendant not guilty of maliciously, but of unlawfully, doing the act charged in the indictment; and when, after the verdict was so written and read, on the jury being polled, one dissented from the verdict so written, it was proper for the court to direct them to return to their room to further consider of their verdict, and, when the jury rendered the same verdict, there was no error in entering judgment on such verdict. ^[2]

Section 22 of chapter 152 of the Code, authorizing the court to fix punishment when a prisoner has been found guilty of a felony is constitutional.

The second point in the syllabus in Flanagan's Case 26 W.Va. 116, reaffirmed.

Error to circuit court, Ritchie county.

Geo. Loomis, R. H. Freer, and T. E. Davis, for plaintiff in error.

Atty. Gen. Caldwell, for the State.

JOHNSON, P.

On the 20th day of February, 1888, William Davis was, in the circuit court of Ritchie county, indicted for maliciously, etc., stabbing one Creed Wilson, with intent to maim, disfigure, disable, and kill him. The prisoner moved to quash the indictment, which motion was overruled, and the prisoner pleaded not guilty. The jury was sworn on the 24th day of February to try the issue. It appears from an order entered on the next day that "it appearing to the court that Peter T. Six, a juror, is unable to perform his duty, George W. Hammer, a qualified juror, was selected, tried, and sworn in his place," etc.; that the prisoner objected to the swearing of a new juror, which objection was overruled. The trial proceeded from day to day until the 1st day of March, 1888, when the jury rendered the following verdict: "We, the jury, find the defendant not guilty as charged in the within indictment, but we find the defendant guilty of unlawful cutting." The court directed the verdict to be put in proper form, and the prosecuting attorney put the verdict in the usual form where the jury, in such cases, finds the defendant not guilty of doing the act "maliciously," but of doing it "unlawfully." The prisoner moved the court to discharge him, because he had not been tried before a proper jury. He also moved in arrest of judgment, and also for a new trial; which several motions were respectively overruled, and the court pronounced judgment on the verdict, and sentenced the pris oner to confinement in the penitentiary for the term of two years. Upon the trial the prisoner saved seven several bills of exceptions. The one designated "O" certifies all the evidence. One was to the discharge of the juror Six, and the substitution of Hammer in his place. Two was to giving to the jury the evidence of the same witnesses who had been examined before the juror Six was discharged. Three was to the overruling the motion to exclude the evidence for the state. Four was to the permission to read from the stenographer's notes to the jury, after the substituted juror was sworn, certain portions of the evidence given by J. M. Davis,--a witness for the prisoner, before Hammer was substituted for Six. Five was to the putting the verdict in form by the direction of the court. Six to the refusal to set aside the verdict and grant a new trial on the additional ground stated in this exception. To the judgment the prisoner obtained a writ of error, and assigns 12 errors committed, as he alleges, by the court, during the trial.

The first two may be considered together. They are, in substance as follows: "The court erred in discharging the juror Peter T. Six, and in substituting G. W. Hammer in his place, and also in directing the trial to proceed without reswearing the other eleven jurors." The right of trial by jury is regarded as sacred, and by the courts has been jealously guarded. It was in England secured by magna charta, and in this country by the constitution of the United States, and of all the states. It is by all the authorities agreed that, when a prisoner is once put upon his trial for a crime before a jury, he is entitled to a verdict from that jury, unless there exists a manifest necessity for its discharge before the verdict is rendered. Many of the authorities hold that as soon as the jury have charge of his case, upon a valid indictment, before a competent court, he is in jeopardy, and stands upon his deliverance; and, if the jury is improperly and illegally discharged, such improper discharge of the jury is equivalent to the acquittal of the prisoner, and the prisoner is therefore entitled to his discharge from further prosecution. McCreary v. Com., 29 Pa. St. 323; Com. v. Fells, 9 Leigh, 613; Williams v. Com., 2 Grat. 568; State v. Garrigues, 1 Hayw. (N. C.) 241; Spier's Case, 1 Dev. 491; State v. McGimsey, 80 N.C. 377; Mahala v. State, 10 Yerg. 532; Ned v. State, 7 Port. (Ala.) 188; People v. Webb, 38 Cal. 467; People v. Hunckeler, 48 Cal. 331; State v. Walker, 26 Ind. 346; Shaffer v. State, 27 Ind. 131; Com. v. Cook, 6 Serg. & R. 577. It has, on the other hand, been frequently held that a prisoner has not been put in jeopardy until he has been tried in a competent court, by a jury, upon an issue on a valid indictment, a verdict rendered, and a judgment entered. U.S. v. Haskell, 4 Wash. C. C. 409; U.S. v. Gibert, 2 Sum. 19; U.S. v. Coolidge, 2 Gall. 364; U.S. v. Shoemaker, 2 McLean, 114; U.S. v. Perez, 9 Wheat. 579; Com. v. Bowden, 9 Mass. 494; Com. v. Purchase, 2 Pick. 521; People v. Olcott, 2 Johns. Cas. 301; People v. Goodwin, 18 Johns. 187: Shepherd v. People, 25 N.Y. 406; Hartung v. People, 26 N.Y. 167; People v. Reagle, 60 Barb. 527; McKenzie v. State, 26 Ark. 334; Hoffman v. State, 20 Md. 425, Price v. State, 36 Miss. 533; Stone v. People, 2 Scam. 326; State v. Redman, 17 Iowa 329; State v. Vaughan, 29 Iowa 286. From the view we take of this case, it will be unnecessary to decide this question here, although all the text writers, so far as we have examined, class Virginia with the authorities holding that an improper exercise of the discretion to discharge a jury in a felony case is equivalent to an acquittal of the prisoner, and this court might feel itself bound by those decisions. In 2 Hawk. P. C. 622, it was said that "it seems to have been anciently an uncontroverted rule, and has been followed even by those of the contrary opinion, to have been the general tradition of the law, that a jury sworn and charged in a capital case cannot be discharged (without the prisoner's consent) till they have given a verdict. And not-withstanding some authorities to the contrary in the reign of King Charles the second, this has been holden for clear law both in the reign of King James the second, and since the revolution." In the Case of Kinloch, Fost. Cr. Law, 16, which was a capital case, Mr. Justice Foster says, (pages 31, 32:) "It seems that an opinion did once prevail that a jury once sworn and charged, in any criminal case whatsoever, could not be discharged without giving a verdict; and this opinion is exploded in Ferrar's Case, [T. Raym. 84;] and it is there called a 'common tradition' which has been held by many learned in the law. My Lord Coke was one of these learned men who gave in to this tradition, as far at least as concerneth capital cases, and he layeth down the rule in very general terms, in the passages which have been cited on behalf of the prisoners from his first and third Institutes." In Rex v. Edwards, 3 Camp. 207, it appeared that one of the jurors in a capital case, having fallen down in a fit, and having been carried out of court insensible, upon being convinced that the juror would be unable to return to his duty, although evidence had been received, Baron Wood, who tried the case, discharged the eleven remaining jurors against the objection of the prisoner. The names of the eleven were again called over, and a twelfth was put into the box. The prisoner was desired, if he would, to challenge them as they came to the book to be sworn. They were all sworn without challenge. The officers charged them with the prisoner in the common form. The witnesses for the crown were sworn anew; and, by consent, the evidence they had before given was read from the judge's notes, and they were asked whether it was true. The prisoner was convicted. At the following Easter term, in the...