State v. Gargiliana, No. 10533

• Court: Supreme Court of West Virginia
• Writing for the Court: GIVEN
• Citation: 138 W.Va. 376,76 S.E.2d 265
• Parties: STATE, v. GARGILIANA.
• Decision Date: 09 June 1953
• Docket Number: No. 10533

Page 265

76 S.E.2d 265 138 W.Va. 376 STATE,
v.
GARGILIANA. No. 10533. Supreme Court of Appeals of West Virginia. Submitted April 28, 1953.
Decided June 9, 1953.

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Syllabus by the Court

1. A defendant upon trial of a felony is entitled to a panel of twenty jurors each free from bias or prejudice before being called upon to exercise his right of peremptory challenges.

2. 'In order that one who has formed or expressed an opinion as to the guilt or innocence of the accused may be accepted as a competent juror on such panel, his mind must be in condition to enable him to say on his voir dire unequivocally and without hesitation that such opinion will not affect his judgment in arriving at a just verdict from the evidence alone submitted to the jury on the trial of the case.' Point 3, Syllabus, State v. Johnson, 49 W.Va. 684 [39 S.E. 665].

3. Evidence of a separate and distinct offense can not be admitted upon a trial of a criminal charge, unless the separate and distinct offense tends to establish motive, scheme or intent, then in issue, and is similar, near in point of time, and has some logical connection with the offense for which the defendant is being tried.

John A. Cain, Elkins, for plaintiff in error.

John G. Fox, Atty. Gen., James C. Blanton, Sp. Asst. Atty. Gen., for defendant in error.

[138 W.Va. 377] GIVEN, Judge.

Defendant, Salvatore Gargiliana, was convicted before a jury, in the Circuit Court of Randolph County, upon an indictment charging him with having, 'on the ___ day of _____, 1952, * * * unlawfully and wilfully', upon a named person, made 'an assault with intent to unlawfully, feloniously and wilfully commit the detestable and abominable crime against nature, by then and there * * * attempting * * * to feloniously and wilfully have carnal knowledge' of the body of that person, whereby defendant did 'attempt to unlawfully, feloniously and wilfully have carnal knowledge of the body of the said' person, by the anus. The verdict of the jury, properly signed, reads: '7-8-52 Your Honor, we, the jury find the defendant guilty as charged.' A motion of defendant to set aside the verdict, timely made, was overruled, and a judgment was entered sentencing defendant to the state penitentiary for a term 'of one to ten years'. This Court granted a writ of error.

The propositions involved in the several assignments of error made by defendant are: (1) Defendant was not afforded an impartial panel of twenty jurors from which the jurors to try the case could be selected; and (2) the State was permitted to offer evidence of the commission by defendant of numerous separate and distinct violations, for some of which he was then under indictment.

It appears that at the same term of court at which this case was tried, defendant was tried for a different violation, of the same type as that involved in the instant proceeding, and that such trial resulted in failure of the jury to agree upon a verdict. Four of the panel of twenty called in the instant case were in the court room and heard at least part of the evidence offered against defendant at the previous trial. At least one of the four had 'talked it over with several people. Just heard them talk about the case quite a bit. I didn't hear all of the [138 W.Va. 378] evidence, of course.' This juror was asked by counsel for defendant the following question: 'In that discussion of the case did you formulate an opinion that would be such that you could not render a fair decision or that might bias you in rendering a decision in this case for or against the defendant?'; to which question the juror gave the following answer: 'Well, the only way it would be, maybe

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I heard something that wouldn't be brought out in the case, or something of that kind. It might be.' The four jurors, being further questioned by the court upon their voir dire, answered to the effect that they had formed no fixed opinion as to the guilt or innocence of defendant. The court refused to strike any of the four jurors from the panel of twenty, and defendant contends that he could not have eliminated any of the four from the panel by exercise of his right of peremptory challenges, for the reason that all of such challenges were used in eliminating other jurors whom he considered even more objectionable.

In State v. Johnson, 49 W.Va. 684, 39 S.E. 665, this Court held:

'2. A person charged by indictment with felony is entitled under the law to a panel of 20 jurors, each and all of whom shall be 'free from exception,' from which panel the jury for the trial of the case is to be selected, under section 3, c. 159, Code.

'3. In order that one who has formed or expressed an opinion as to the guilt or innocence of the accused may be accepted as a competent juror on such panel, his mind must be in condition to enable him to say on his voir dire unequivocally and without hesitation that such opinion will not affect 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 [138 W.Va. 379] 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.' In State v. Schnelle, 24 W.Va. 767, at page 782, the Court stated: '* * * unless the proposed juror understands his own mind on the question, and can promptly say, that it is at that time free from prejudice, and that his mind is entirely free to pass upon the guilt or innocence of the accused upon the evidence submitted to him as such juror, he is not a competent juror and should be ordered to stand aside * * *.' See State v. Messer, 99 W.Va. 241, 1281 S.E. 373, 40 A.L.R. 608; State v. Richards, 101 W.Va. 136, 132 S.E. 375.

The determination of the qualification of a juror is a problem often difficult to solve. The fact sought to be established, whether the juror may be biased or prejudiced, rests alone with the proposed juror, and often he may be unable to honestly determine whether he would be unduly influenced by certain facts or situations in consideration of evidence to be offered. Usually the answer is left to the sound discretion of the trial judge. State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541; State v. Camp, 110 W.Va. 444, 158 S.E. 664. His experience in such matters, often aided by some knowledge of the character, abilities and habits of the particular juror, coupled with the fact that he observes the demeanor and expressions of the juror on the voir dire examination, are justifiable reasons for vesting wide discretion in him. The decisions usually hold, however, that the answer of a prospective juror, upon his voir dire examination, to the effect that he is not prejudiced or biased, is not controlling. In 50 C.J.S., Juries, § 241, it is stated: 'A juror's statement as to whether or not he has an opinion and whether or not it will affect his verdict is not conclusive on the question of his competency.' In State v. Camp, 110 W.Va. 444, 158 S.E. 664, we held: '2. The fact that a venireman has expressed an opinion as to the guilt or innocence of the accused is not controlling[138 W.Va. 380] in determining the qualification of such venireman to sit as a juror in the trial. The deciding factor is whether without bias or prejudice he can render a verdict solely on the evidence, under the court's instructions, disregarding any prior opinion which he may have entertained.' See State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541; State v. Dephenbaugh, 106 W.Va. 289, 145 S.E. 634; State v. Richards, 101 W.Va. 136, 132 S.E. 375; State v. Larue, 98 W.Va. 677, 128 S.E. 116; State v. Toney, 98 W.Va. 236, 127 S.E. 35; State v. Hatfield, 48 W.Va. 561, 37 S.E. 626.

One of the four jurors who were permitted to try the case over the objection of defendant, stated, concerning the

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charge for which defendant was being tried, that he had 'talked it over with several people'. When asked whether he might have become biased against defendant by reason of what he had heard, he answered: 'Well, the only way it would...