State v. StratA Uder.

• Decision Date: 17 November 1877
• Citation: 11 W.Va. 745
• Court: West Virginia Supreme Court
• Parties: State v. StratA Uder.

11 W.Va. 745

State

v.StratA Uder.

Supreme Court of Appeals of West Virginia.

Decided November 17, 1877.

1. Taylor Strauder was indicted for murder in the circuit court of Ohio county, on the 20th day of May 1872, within one month after he was arrested. The case was continued several times upon his motion, but never on the motion of the State. He was tried and convicted at the July term, 1873. He then applied for and obtained a writ of error to the Supreme Court of Appeals. On the 20th day of July 1874 they reversed the judgment of the circuit court, sentencing him to be hanged, because the circuit court had refused to remand him to the county court for examination. On the 20th day of October, 1874, a new indictment was found against him, on which the State elected to try him; and thereupon the prisoner moved the court to discharge him from custody, three terms having elapsed since he was in custody upon the mittimus of the Justice issued on April 25, 1872. Held: The circuit court properly overruled this motion.

2. A prisoner is not entitled to have a case removed into the Circuit Court of the United States for trial upon his petition, supported by affidavit setting forth that he is a colored man, and that such prejudices exist in the State against his race, that he cannot get-justice in the State courts, and also that by a law of the State only white men can sit upon the jury.

3. In this State there are two modes of obtaining juries for the trial of felonies one under the 3d section of chapter 47 of Acts 1872-3, the other under the 6th and succeeding sections of said act. If the record shows that the jury was summoned in the second of these modes, this Court will not reverse a judgment of the circuit court refusing to quash the venire facias or the panel of the jury, because it does not appear that all the provisions of the statute, other than those to be performed by the circuit court or its officers, have been complied with, it not appearing affirmatively that any of the provisions of the act have not been complied with.

4. Upon the trial of a prisoner charged with murder, after the jury had been examined on their voir dire, accepted and sworn, and after considerable testimony had been taken, the counsel for the prisoner placed in the hands of a Judge on the bench privately an affidavit of a person, that he had heard one of the jurors say, some three months before, that the prisoner ought to be hung; and also affidavits of the prisoner and his counsel, that they had just learned that the juror had expressed any opinion, or that he had any bias against the prisoner; but neither the prisoner nor his counsel made any motion based on said affidavits, nor does it appear, that the attorneys for the State had any knowledge of the existence of these affidavits, or of their being handed to the Judge. The court took no action upon them; and after the prisoner had been found guilty by the jury, the prisoner moved for a new trial, because this juror served on the jury; and thereupon the juror made his affidavit positively denying that he expressed such opinion to the party who made the affidavit, or to any one else; or that he entertained any prejudice or bias against the prisoner. And it does not appear that the prisoner suffered injustice by reason of this juror j serving on the jury, the court below refused to grant the new trial. This Court will not reverse such a decision.

5. The court below properly reiected the following instruction: ''If the jury entertain a rational doubt of the soundness of the mind of the prisoner, at the time of the commission of the j homicide charged, he is entitled to the benefit of that doubt as he would be to the benefit of a doubt as to any other material fact in the case, it being under our statute a necessary ingredient of the offense, that the person charged shall, at the time of the commission of the offense, be of sound mind, although the jury may believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary affairs of life even at the time of the commission of the offense, they cannot find him guilty" and properly gave the following instruction in lieu thereof:" To entitle the prisoner to an acquittal upon the ground that he was insane at the time of the commission of the offense charged in the indictment, such insanity must be proved to the satisfaction of the jury, though in passing-upon this question, they may look at the whole evidence in the case, as well that for the State as for the prisoner."

Taylor Strauder, a colored man, was convicted of the murder of his wife and sentenced to death by the circuit court of Ohio county on the 9th day of January 1875.

From this judgment of the circuit court a writ of error was awarded him to this Court. The facts of the case are stated in the opinion of the Court.

Hon. T. Melvin, Judge of the first judicial circuit, presided at the trial below.

Davenport & Dovener, for the prisoner:

The first question to be considered is, did the circuit eourt err in not discharging the defendant from custody upon his motion, it appearing to the court from the evidence in support of the motion that three terms of the circuit court had elapsed since the defendant was imprisoned? See Code, chapter 158, section 12, p. 715. The record shows that the indictment was found on the 30th day of October 1874, and the defendant was committed on the 25th day of April 1872, five terms of the circuit court having been held since his incarceration, amd before the term at which said indictment was found. In Adcock's case, 8 Graft. 661, one of the questions presented was, ought the court to discharge the prisoner, and to receive the record as evidence? The court held hat the record was indispensable to prove the fact of indictment or trial, and that there could be no doubt of he necessity of adducing the record evidence. No such evidence was adduced in this issue by the State.

It was error in the circuit court to refuse to grant the defendant's petition to remove his cause to the Circuit court of the United States for the fourth judicial circuit. In the case of the Rathbone Oil Company v. Charles M. Ranch, 5 W. Va. 79, this Court decided that it is error in a a State court to refuse to certify a proper case to the United States court. That the petition and affidavit of defendant made a proper case for such removal, there can be no doubt. By the act of the Legislature, chapter 47, section 1, p. 102, Acts of 1872-3, passed March 12, 1873, in relation to juries:" All white male persons, Who are twenty-one years of age and not over sixty, and who are citizens of this State, shall be liable to serve as jurors, except as herein provided." The second section excepted State officials. This statute was, if of any validity in force when the defendant was tried. On the 9th day of April 1866 Congress passed an act entitled, "An act to protect all persons in the United States in their crvil rights, and furnish the means of their vindication." See 14 Statutes at Large, chapter 31, p. 27, sections 1 and The first section of the act declares " all persons born the United States, and not subject to any foreign powe excluding Indians not taxed, to be citizens of the Unite States;" and it enacted that such citizens of every ra and color, shall have the same rights in every State territory in the United States, to make and enforce tracts, to sue and be sued, be parties and give evidenc to inherit, lease, sell, hold and convey real and person property, and to full anel equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to no other, any law, statute, ordinance, regidation or custom to the contry notwithstanding.

Section 3 confers exclusive jurisdiction upon the courts of the United States of all cases, civil and criminal, affect ing persons, who are denied or cannot enforce in the State courts any of the rights secured to them by section lst and provides for the removal from the State courts such causes upon affidavit, &c. This act was passed pursuance of the 5th section of the fourteenth amened ment to the Constitution of the United States, whie section provieles that Congress shall have power to force by appropriate legislation the provisions of fourteenth amendment. The purpose of that amend ment and the reason for its adoption, are so well know that it is entirely unnecessary to aelvert to them all agreeing that the purpose of the amendment could not be more fully expressed than in the words of the section itself, which, after defining who are citizens, is in the following words: "No State shall make any law which all abridge the privileges or immunities of citizens of' thee United States; nor shall any State deprive any personof life, liberty or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws."

The act known as the civil rights law has been decided to be constitutional in the case of the United States v. John Roads et oJ., 1 Am. Law Times p. 23. This is the first reported case where the act received judicial conruction. The court held that the civil rights law gave 3 colored persons everywhere the same right to testify as is enjoyed by white citizens," and that the United states courts had jurisdiction of all cases, civil and criminal, which concern the colored man, wherever the right to testify equally with the white is denied him, or connot be enforced by the State tribunals. The right to crial by jury is guaranteed to every citizen of the State West Virginia by the Constitution of the State; but of color are not permitted to be jurors. The contention that framed the Constitution, it is apparent that instrument, intended that there should be no distinction, from the fact that they permitted colorcitizens to hold office. A colored man may be a clerk o...