State v. Dushman, (No. 3151.)

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation91 S.E. 809
PartiesSTATE v. DUSHMAN.
Docket Number(No. 3151.)
Decision Date06 March 1917

91 S.E. 809
(79 W.Va. 747)

STATE
v.
DUSHMAN.

(No. 3151.)

Supreme Court of Appeals of West Virginia.

March 6, 1917.


(Syllabus by the Court.)

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, and a new trial awarded.

Daugherty & Riggs, of Huntington, for plaintiff in error.

A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.

MILLER, J. Indicted, tried, found guilty, and sentenced to imprisonment in the peni-

[91 S.E. 810]

tentiary 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 (sec. 5579), 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, 39 S. E. 665, Syl. 2; Hufnagle v. Delaware & Hudson Co., 227 Pa. 476, 76 Atl. 205, 40 L. R. A. (N. S.) 982, 19 Ann. Cas. 850. In Melson v. Dickson, 63 Ga. 682, 36 Am. Rep. 128, the court said:

"The defendant had the right to a panel of twenty-four 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 Ga. 39; [Howell v. Howell] 59 Ga. 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 corner-stone 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, 37 S. E. 626, 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, c. 116, Code 1913 (sec. 4656), 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 ap pear 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 cither 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, 29 Sup. Ct. 260, 53 L. Ed. 465, 15...

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30 practice notes
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • June 26, 1985
    ...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 whether without bia......
  • State v. Gargiliana, No. 10533
    • United States
    • Supreme Court of West Virginia
    • June 9, 1953
    ...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 [138 W.Va. 379] right to a panel of......
  • State v. Beck, No. 14549
    • United States
    • Supreme Court of West Virginia
    • July 17, 1981
    ...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.2d 174 (1974), ......
  • State v. Riley, No. 12565
    • United States
    • Supreme Court of West Virginia
    • February 24, 1967
    ...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 [151 W.Va. 383] The only persons disqualified from jury service in this State, by statute, are idiots, lu......
  • Request a trial to view additional results
30 cases
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • June 26, 1985
    ...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 whether without bia......
  • State v. Gargiliana, No. 10533
    • United States
    • Supreme Court of West Virginia
    • June 9, 1953
    ...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 [138 W.Va. 379] right to a panel of......
  • State v. Beck, No. 14549
    • United States
    • Supreme Court of West Virginia
    • July 17, 1981
    ...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.2d 174 (1974), ......
  • State v. Riley, No. 12565
    • United States
    • Supreme Court of West Virginia
    • February 24, 1967
    ...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 [151 W.Va. 383] The only persons disqualified from jury service in this State, by statute, are idiots, lu......
  • Request a trial to view additional results

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