State v. Muncey
| Decision Date | 09 November 1926 |
| Docket Number | 5606. |
| Citation | 135 S.E. 594,102 W.Va. 462 |
| Parties | STATE v. MUNCEY. |
| Court | West Virginia Supreme Court |
Submitted October 26, 1926.
Syllabus by the Court.
Error not specified on a motion for a new trial or not made the subject of a special bill of exceptions will be treated as waived.
The general purpose of the statutes relating to the drawing of grand juries is to expedite and not to hamper the administration of justice; hence they are directory rather than mandatory. While courts should use meticulous care to follow the statute, a technical departure from the mode of procedure by the court in such drawing, where the prisoner has not been shown to have been prejudiced thereby, will not be ground for reversal.
A case where the instructions given on behalf of the state were warranted by the evidence.
Oral answers by the trial court to questions of the jury relative to the verdicts they might find under the indictment and the evidence in a murder case are proper, and are not in violation of section 22, c. 131, Code, requiring instructions to be in writing.
A mere separation of the jury will not entitle the defendant in a murder case to a new trial; but where, in such case, there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of the presumption that such separation has been prejudicial to him, and the burden of proof is upon the prosecution to show beyond a reasonable doubt that the prisoner has suffered no injury by reason of the separation. If the prosecution fails to do this, the verdict will be set aside. State v. Robinson, 20 W.Va. 721, 43 Am. Rep. 799; State v. Cartright, 20 W.Va. 32; State v. Harrison, 36 W.Va. 729, 15 S.E 982, 18 L. R. A. 224; State v. Cotts, 49 W.Va. 615 39 S.E. 605, 55 L. R. A. 176; State v. Clark, 51 W.Va. 457, 41 S.E. 204; State v. Cottrill, 52 W.Va 363, 43 S.E. 244.
Error to Circuit Court, Mingo County.
James Muncey was convicted of second degree murder, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.
James Damron, of Williamson, and G. R. C. Wiles, of Charleston, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
James Muncey was indicted by a special grand jury at the April term, 1925, of the circuit court of Mingo county, for the murder of Sherman Parsley. He was tried at the July term, 1925, found guilty of murder in the second degree, and sentenced to 18 years' imprisonment.
As the case turns on purely questions of law, the following brief statement of the facts will suffice: On the 19th day of May, 1925, a special election was held in the town of Kermit, in Kermit district, for the ratification or rejection of an independent school district for said town. Feeling ran high amongst the electorate. The deputy sheriffs of the county and district, who were present, opposed, while the town police of Kermit favored, ratification. In the afternoon of said day, and shortly after several officers, including Muncey, had disarmed a town officer who had attempted to arrest one of their number for knocking down a private citizen, Town Policeman Ken Chapman appeared at the voting place. Ken Kirk, one of the deputy sheriffs, met Chapman, and a quarrel ensued, whereupon Sherman Parsley admonished peace. Ken Kirk drew his gun on Chapman, and Parsley, to prevent Kirk's shooting Chapman, struck Kirk's hand, thereby causing the ball to hit the ground. A mêlée ensued, and some 50 to 70 shots were fired. Parsley and another man were killed, and several of the participants wounded. As to exactly what took place and who shot Parsley, the evidence for the state and the defendant is in sharp conflict. According to a number of state's witnesses, Muncey, the defendant, leveled his gun on Parsley, after the latter had struck Kirk's hand, and shot him through the back, killing him. Some testified to seeing the smoke from defendant's gun, which was pointed directly towards the back of Parsley, saw the dust fly out of Parsley's coat when shot, and saw him fall. A number of these witnesses had previously seen defendant with two guns in his hands, swearing that he was "the meanest man in seven states." The defendant denies shooting the deceased, and claims he was a friend to him, and he and a number of his witnesses testify to the fact that Ken Chapman, the town policeman, was the party who actually shot and killed the deceased.
Numerous errors as to the admission of testimony were set out in proper bills of exception, but, as they were not called to the attention of the lower court on the motion to set aside the verdict, were waived. State v. Jones, 77 W.Va. 636, 88 S.E. 45; State v. Henaghan, 73 W.Va. 706, 81 S.E. 539.
On the hearing the defendant relied upon the following errors for reversal: (1) Refusal of the court to abate and quash the indictment; (2) refusal to sustain his challenge to the array of the trial jury and to quash the entire panel; (3) the giving of the state's instructions Nos. 1 and 2; (4) because the court orally instructed the jury as to the different verdicts they might find; and (5) because the trial jury were not kept together during the trial, as required by law.
The challenge to the legality of the grand jury was raised by a proper plea in abatement. The plea set out that the circuit court, on the 22d day of May, 1925, by an order entered in law order book, directed a special grand jury to be summoned to attend upon the court three days later. By this order the clerk of said court was directed to draw and select from the grand jury list 16 qualified grand jurors to attend on the day set. Pursuant to this order, the said clerk, in the presence of the presiding judge, drew from the grand jury box the names of 16 jurors to attend as aforesaid. The jury commissioners were not summoned to attend and did not attend and select said grand jury or in any manner participate therein. On the day stated in the order, 14 of said grand jurors drawn as aforesaid appeared, and the two vacancies were filled by special jury commissioners as the law directs. The irregularity relied on is that the clerk drew the grand jury from the box instead of such drawing being made by the jury commissioners. Section 1, c. 157, Code, in part reads as follows:
"Any circuit court may at a special or regular term thereof, whenever it shall be proper to do so, order a grand jury to be drawn and to attend such term."
It was under this authority that the grand jury in question was drawn. It will be noted that this section does not define the manner of its selection. True, the following section provides:
"The jury commissioners appointed under the provisions of section three of chapter one hundred and sixteen of the Code, shall select and draw persons for grand juries."
And section 3 of said chapter gives the court, or judge thereof, power to "require said jury commissioners to appear forthwith, or at any specified time, and select grand jurors for either a regular or special term of court." It may reasonably be inferred that the jury commissioners were the proper ones to make the drawing here. But shall we quash the indictment? We have held frequently that the statutes providing the method of summoning grand juries are directory. State v. Taylor, 57 W.Va. 228, 50 S.E. 247; State v. Hoke, 76 W.Va. 36, 84 S.E. 1054; State v. Wetzel, 75 W.Va. 7, 83 S.E. 68, Ann. Cas. 1918A, 1074; State v. Driver, 88 W.Va. 480, 107 S.E. 189, 15 A. L. R. 917; State v. Austin, 93 W.Va. 704, 117 S.E. 607. This is on the theory that it is merely an accusing body, and the liberty of the citizens does not require that nice inquiry should be made into the manner in which it was organized. Thompson & Merriam on Juries, § 140; State v. Austin, supra. Its selection was protected from technical attacks thereon by the statute providing that:
"No presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand jurors who found the same." Code, c. 157, § 12.
There is no charge here that the jury was not properly selected by the jury commissioners and placed in the box, and that the box had not been kept in the manner provided by law. The act complained of was merely ministerial. It was performed under the direction of and in the presence of the court. How could the prisoner have been prejudiced? As Judge Brannon said in Easthan v. Holt, 43 W.Va. 603, 27 S.E. 883, 884: "A large discretion is here given the court for the administration of justice." This court said in State v. Price, 92 W.Va. 542, 115 S.E. 393:
"Ordinarily, a statute providing simply a mode of procedure will be held directory, and if the thing intended to be done is done in some other way than that provided by the statute it will be valid, unless the statute in express terms provides that it shall be invalid unless performed in the manner pointed out."
Our statute does not so provide. The general purpose of these statutes is to expedite and not to hamper the administration of justice; hence they are directory rather than mandatory. While courts should use meticulous care to follow the statute, a technical departure from the mode of procedure by the court in their enforcement, such as we have here, where the prisoner has not been shown to have been prejudiced thereby, will not constitute reversible error.
The defendant bases his objection to instructions 1 and 2 on the ground that in this case there was no evidence of malice-malice being an essential element of murder in either the first or second degree. While expressing no opinion on...
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