State v. Mills

Decision Date30 January 1890
Citation10 S.E. 808,33 W.Va. 455
PartiesSTATE v. MILLS.
CourtWest Virginia Supreme Court

Submitted January 10, 1890.

Syllabus by the Court.

1. Section 14 of chapter 116 of the Code authorizes the circuit court, in the proper exercise of a legal discretion, to summon a panel of the requisite number of jurors from by-standers.

2. It is error for the circuit court to refuse to set aside a verdict and grant a new trial, in a felony case, when the state fails to prove at the trial that the alleged offense was committed within the jurisdiction of the court.

Error to circuit court, Raleigh county.

French & French, for plaintiff in error.

Atty Gen. Caldwell, for the State.


This case comes before this court on a writ of error from Raleigh county circuit court to a judgment rendered therein at its April term, 1889. The prisoner had been indicted for the murder of one George R. McKinney, who was shot and killed at the house of one James A. Mitcham; and the jury found the prisoner not guilty of murder, but guilty of voluntary manslaughter. A motion in arrest of judgment, and for a new trial, was made, and overruled by the court, which thereupon proceeded to sentence the prisoner to the penitentiary for the period of two years. A bill of exceptions was filed which sets out the evidence in full, and also included two affidavits of after-discovered testimony.

The first assignment of error is because the jury by which the prisoner was tried was summoned from the by-standers, and without any other venire facias than the order of the court, entered of record. Chapter 116 of the Code prescribes the manner of electing, summoning, and challenging jurors, and makes no distinction in the method to be pursued between civil and criminal cases, except in the number of challenges. Section 14 of that chapter provides as follows "Nothing contained in the preceding sections shall prevent any court, in term-time, from requiring other jurors to be drawn in like manner, or requiring other jurors whether so drawn or not, to be summoned, whenever it shall be found necessary, for the convenient dispatch of business, in which case the jurors so summoned shall be required to attend on such days as the court shall direct." The power thus conferred on the circuit court should be exercised with due precaution, in the discretion of the court; but, when so exercised, such action is not illegal, or...

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