State v. Medley.
| Decision Date | 16 November 1909 |
| Citation | 66 W.Va. 216 |
| Parties | State v. Medley. |
| Court | West Virginia Supreme Court |
A jury commissioner, who lias been regularly appointed by the court and who is otherwise qualified, but who has failed to take and subscribe the oath prescribed by section 3, chapter 116, Code, is, notwithstanding, a de facto officer; and, as between third parties, his acts performed in the discharge of his duties as such jury commissioner are valid. (Williams, J. dissenting). (p. 218).
A motion, made by a prisoner about to be tried for crime, to quash the venire and discharge the panel on the ground that the list of names of persons to serve as jurors, from which the panel was drawn, was selected by two jury commissioners one of whom had not taken the oath prescribed by section 3, chapter 116, Code, is properly overruled. (Williams, J., dissenting), (p. 218)..
So much of section 3, chapter 116, Code, as applies to the time of meeting of the jury commissioners for the purpose of selecting the annual list of persons to serve as jurors is simply directory, and a substantial compliance therewith is sufficient, (p. 221).
Section 7, chapter 11G, Code, respecting the number of jurors to be summoned by the clerk is directory, and the issuance of the writ for a greater number than thirty, without an order of court-directing it, is a substantial compliance with the statute。 (p. 222).
It is not error to refuse an instruction asked for by the accused, if another instruction embracing the same points of law, free from objections and not in any manner prejudicial to the accused, has been given on behalf of the state. It is not necessary that the same instruction should be twice given。 (p. 224).
When, in a trial for murder, the prisoner had introduced evidence tending to justify the homicide on the grounds of self defense, and the jury have been properly instructed as to the law of self defense, it is not error to give the following instruction, viz: "If they believe from the evidence in the case that the accused was guilty of shooting the deceased with a deadly weapon and killing him the intent, the malice and wilful deliberation and premeditation may be inferred from the act." (p. 225).
Error to Circuit Court, Mercer County.
John Medley was convicted of murder in the first degree, and he brings error.
Affirmed.
Hale & Pendleton, for plaintiff in error.
William 67. Conley, Attorney General, for the State.
At the July term, 1908, of the criminal court of Mercer county 66 w. Va. John Medley was indicted and tried for the murder of one Neely Shannon. He was convicted of murder in the first degree and sentenced to be hanged. The judge of the circuit court of Mercer county refused a writ of error, and on the 27th of January, 1909, defendant obtained one from this Court.
Defendant took two several bills of exceptions, the first of which embodied his exception to the action of the court in overruling his motion to quash the writ of venire facias on the grounds, (1) that one of the jury commissioners who made up the list of jurors from which the panel was drawn was not a qualified jury commissioner; (2) that the jury commissioners did not prepare the list of persons who were to serve as jurors at the time required by law; (3) that the clerk issued the writ for more than the number of jurors required by law, without authority of court.
Samuel R. Holroyd, one of the jury commissioners that made up the list from which the panel was selected, had not taken the oath prescribed by section 3, chapter 116, Code; and the prisoner moved to quash the venire and discharge the panel, before the jury were examined on their voir dire, and the court overruled his motion. Was this error? The majority of the court are of the opinion that it was not, for the reason that Samuel R. Holroyd, by virtue of his appointment, had color of title to this office of jury commissioner, and that his acts, being the performance of a duty in the interest of the public, are to be regarded as those of a de facto officer and, therefore, valid. Building & Loan Assn. v. Sohn, 54 W. Va. 101, and authorities cited on pages 114 and 115; Knight v. Town of West Union, 45 W. Va. 194; 29 Cyc. 1389; Thompson & Merriam on Juries, section 63; Rafe v. State, 20 Geo. 60. But I am unable to agree with the other members of the Court on this subject. My opinion is that the taking of the oath prescribed is an essential element of a jury commissioner's power to act; that the legislature plainly intended this provision of the statute to be mandatory; that the failure to take the oath renders void the acts of such so-called jury commissioner; and that the prisoner could take advantage of this want of qualification by motion to quash the panel, made before the jury had been sworn to try the issue. No one questions the power of the legislature to prescribe the manner in which juries arc to be selected, and to fix the qualifi- cation of jury commissioners, and I can hardly imagine how language could have been framed to express any more certainly the intention of the legislature to make this provision imperative than is done by the language employed in the statute. It says: "before entering upon the discharge of their duties, the jury commissioners shall take and subscribe an oath" etc. I do not think the principle which has been so often applied by the courts in upholding the acts of officers defacto, done under color of title to office, can properly be invoked to support the acts of a jury commissioner who had never been qualified to act. The legislature, I think, has made the oath an essential qualification before power to act is conferred; it is jurisdictional and fundamental; and. a prisoner tried by a jury selected from a panel drawn from a list of names of persons to serve as jurors made up by two jury commissioners, one of whom had not taken the oath prescribed, is not tried in the manner provided by law. Such a trial was without due process, and in such case it was not necessary for the prisoner to show thai; he was prejudiced; he had a right to demand a trial by a jury selected by jury commissioners who should be qualified in the manner the law provides. The following authorities support this view, viz: State v. Williams, 30 La, 1028; State v. Flint, 52 La, Ann. 62; State v. Bryce 11 S. C. 342; Hall v. Commonwealth, 80 Va, 555; Richards v. Commonwealth, 81 Va. 110; Jones et al v. Commonwealth, 41 S. E. 951; 12 Enc. Pl. & Pr. 282; 24 Cyc. 211.
A further objection is urged that the list of jurors, from which the panel was drawn, was not made up at the time required, by law; that it was not done at the levy term of the county court, The statute directs the list to be made up at the levy term of the county court, annually, "and at any other time when required by the circuit court of such county;" or, in the present case, by the criminal court of Mercer county. The record shows that the list was made up on the 22nd and 23rd days of July, 1907. The order entered of record by the jury commissioners themselves shows that they met in the clerk's office of the criminal court of Mercer county, on the 22nd day of July, 1907, the order reciting: "It being the levy term of the county court," and that on that day they proceeded to prepare a list of persons qualified to serve as jurors and that, not having completed their work, they adjourned until tie next day; and on the next day, not having completed their work, they adjourned until the following day; and on the third day they met and completed their work. The record also shows that the county court met on "Tuesday the 2nd day of July, 1907;" that on this day it entered an order adjourning until "July 23rd 1907;" and that on the 23rd of July it met and adjourned until the "31st day of July, 1907."
The Acts of the Legislature, 1907, chapter 63, re-enacting section 29 of chapter 39 of the Code, fixes the time when the levy term must begin. This act provides that: "The county court of every county shall, at a regular or special session of said court, held for the purpose on the first Tuesday of July in each year, proceed to make up an estimate of the amount necessary to be levied for the current fiscal year to cover all county debts and liabilities payable during each year" etc. It provides that said estimate shall be published in at least two newspapers of opposite politics in the said county, if there be such, for at least three weeks, showing the amount to be levied for; and further provides that the court shall stand adjourned until said publications shall be completed, and shall then reconvene "on the first Tuesday after said publications have been made," and make such corrections in the estimate as may appear to the court necessary and proper. The statute then says: "The said court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county, according to the last assessment thereof, as will cover the estimated amount necessary to be raised for county purposes" etc. The effect of this act is to fix the levy term of the county court on some Tuesday, late in the month of July. The record in this case shows that the county court met on the 2nd day of July, 1907, which was a Tuesday. If the 2nd was a Tuesday it was necessarily the first Tuesday in the month. The court then adjourned until the 23rd of July, 1907, which evidently was also a Tuesday, the 2nd of the month being Tuesday. The 23rd must also have been the first Tuesday after the completion of the publications of the estimates as...
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