State v. Dushman.

Decision Date06 March 1917
Docket NumberNo. 3151.,3151.
Citation79 W.Va. 747
PartiesState v. Dushman.
CourtWest Virginia Supreme Court

1. Jury Challenge Statutory Provision.

By section 3, chapter 159, Code 1913, one accused of a felony is entitled as a matter of right to a panel of twenty jurors, unexceptionable under the rules of the common law, before being called upon to exercise his right of peremptory challenge, (p. 748).

2. Same Disqualification Interest.

An employee of a railway company prima facie is disqualified to sit as a juror in the trial of one indicted for stealing or buying and receiving property of the railway company alleged to have been stolen, (p. 749).

3. Criminal Law Opinion Evidence.

The opinion of a witness, not an expert, as to any fact in issue before the jury is not generally admissible, unless from the very nature of the subject in issue it cannot be stated or described in such language as will enable persons not eye witnesses to form an accurate judgment regarding it, and an opinion based on an inconclusive fact and argumentative in character should not be admitted, (p. 750).

4. Eeceiving Stolen Goods Evidence Knowledge.

On the trial of one accused of buying and receiving stolen goods, knowing them to have been stolen, evidence that such goods were bought and sold in the same market by and from individuals, mining companies, and manufacturing concerns, and is merchandise commonly on the market, is properly admissible on the question of the guilty knowledge of the accused and the bona fides of the transaction, (p. 753).

Error to Circuit Court, Cabell County. Ben Dushman was convicted of receiving stolen goods, and he brings writ of error.

Judgment reversed, verdict set aside, new trial awarded.

Daugherty & Riggs, for plaintiff in error.

A. A. Lilly, Attorney General, and John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.

Miller, Judge:

Indicted, tried, found guilty, and sentenced to imprisonment in the penitentiary for the term of three years for unlawfully and feloniously buying and receiving certain pieces of brass of the value of sixty dollars, of the goods and chattels of the Chesapeake & Ohio Railway Company, lately before feloniously stolen, taken and carried away, well knowing the same to have been so feloniously and unlawfully stolen, taken and carried away, defendant by the present writ of error seeks reversal of the judgment.

The first point of error in logical sequence is that the court below on impanelling of twenty jurors, and on their voir dire, denied counsel for the prisoner the right or privilege of inquiring whether they were employees of the Chesapeake & Ohio Railway Company, the company whose property was alleged to have been stolen, and who stated that three of said jurors, namely, H. L. Clark, Mandeville Crawford, and Joseph Merritt, if he was permitted to ask of them would say that they were then in the employ of said railway company.

By section 3, chapter 159, Code 1913, one accused of felony is entitled as a matter of right to a panel of twenty jurors who according to the common law must be omni exceptione majores, before exercising his right of peremptory challenge. 2 Cooley's Blackstone, Book III, (4th ed.) p. 1124, star page 363; State v. Johnson and Devinney, 49 W. Va. 684, Syl. 2; Hufnagle v. Deleivare & Hudson Co., 227 Pa. St. 476. In Melson v. Dickson, 63 Ga. 682, 36 Am. Rep. 128, the court said: "The defendant had the right to a panel of twentyfour from which to strike all twenty-four impartial men. Mayor of Columbus v. Gaetchins, 7 Ga. 139; Justices v. Griffin & W. P. Plank Road Co., 15 Id. 39; Howell v. Howell, 59 Id. 145. He was denied this right and was forced to exhaust four strikes upon two brothers and two cousins of the opposing parties who had an interest, a pecuniary interest, in the verdict and judgment they were pressing to obtain. The denial was erroneous and hurtful. A big part of the battle is the selection of the jury, and an impartial jury is the cornerstone of the fairness of trial by jury."

The question then is, is an employee of a railway company disqualified propter affectum, for suspicion of bias or partiality, to sit as a juror? We held in State v. Hatfield, 48 W. Va. 561, that the object of the law, in all cases in which juries are impanelled to try the issue, is to secure men for that responsible duty whose minds are wholly free from bias or prejudice, either for or against the accused, or for or against either party in a civil case. And our statute, section 17, chapter 116, Code 1913, provides specifically that: "Either party in any action or suit may, and the court shall, on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that such person is not a qualified juror or does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause.''

At the common law the principal causes of challenges, prima facie disqualifying jurors, were: (1) Kinship to either party within the ninth degree; (2) was arbitrator on either side; (3) that he has an interest in the cause; (4) that there is an action pending between him and the party; (5) that he has taken money for his verdict; (6) that he was formerly a juror in the same case; (7) that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him; and causes of the same class or founded upon the same reason should be included. Our statute does not remove these common law disabilities; and it has been held that unless superseded by express terms they remain in force as common law disabilities. Crawford v. United States, 212 U. S. 183, 53 L. ed. 465.

All authorities agree that if a juror offered is related to the party, occupies the relation of master, servant, etc., he may be challenged for cause. Here, strictly speaking, the railway company is not actually a party; but it is certainly interested in this prosecution; its employees would certainly not be competent jurors to sit in the trial of an action against defendant for the value thereof or the recovery of the specific property stolen. Is it not so interested in the result of this prosecution as to make the reason for the rule applicable? We are disposed to hold that it is, and that its employees offered as jurors would presumptively be subject to some bias or prejudice, or be under some control or influence of the corporation. In Dimmack v. Wheeling Traction Co., 58 W. Va. 226, point 2 of the syllabus, we held, that an employee of a stockholder or manager of a corporation was not prima facie, and on that ground alone, disqualified as a juror in an action in which the corporation was a party; this upon the ground that the relationship to the party was too remote. In Hopkins v. State of Florida, 52 Fla. 39, the court was unanimously of the opinion that it is the better practice in cases like the one at bar to excuse jurors who are employees of a railway corporation, but were equally divided in opinion as to whether the trial court could be held in error for refusing to do so. But in Berbette v. State, (Miss.) 67 So. 853, the Mississippi court held, in a ease exactly like the...

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  • State v. Beck
    • United States
    • West Virginia Supreme Court
    • 17 Julio 1981
    ...(1978); State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973); State v. Gargiliana, 138 W.Va. 376, 76 S.E.2d 265 (1953); State v. Dushman, 79 W.Va. 747, 91 S.E. 809 (1917). In Syllabus Point 1 of State v. Kilpatrick, W.Va., 210 S.E.2d 480 (1974), and State v. Wilson, 157 W.Va. 1036, 207 S.E.2......
  • State v. Gargiliana
    • United States
    • West Virginia Supreme Court
    • 9 Junio 1953
    ...his judgment in arriving at a just verdict from the evidence alone submitted to the jury on the trial of the case.' In State v. Dushman, 79 W.Va. 747, 91 S.E. 809, this Court held: '1. By section 3, c. 159, Code 1913, one accused of a felony is entitled as a matter of right to a panel of tw......
  • State v. Riley
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    • West Virginia Supreme Court
    • 24 Febrero 1967
    ...peremptory challenges, it would not cure the error if they were not qualified to serve as jurors in the trial of the case. State v. Dushman, 79 W.Va. 747, 91 S.E. 809; State v. Flint, 142 W.Va. 509, 96 S.E.2d The only persons disqualified from jury service in this State, by statute, are idi......
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    ...the action, Watkins v. B & O Railroad, 130 W.Va. 268, 43 S.E.2d 219 (1947); nor was the employer in any sense a victim. State v. Dushman, 79 W.Va. 747, 91 S.E. 809 (1917); State v. Davis, 91 W.Va. 241, 112 S.E. 414 " 'The true test as to whether a juror is qualified to serve on the panel is......
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