State v. Wetzel
| Decision Date | 29 September 1914 |
| Citation | 83 S.E. 68,75 W.Va. 7 |
| Parties | STATE v. WETZEL. |
| Court | West Virginia Supreme Court |
Submitted September 2, 1914.
Syllabus by the Court.
So much of section 3, c. 157, serial section 5539, Code 1913, as relates to the issuance of a venire facias for grand jurors is directory, and the failure to issue such writ will not vitiate an indictment found by a grand jury selected and drawn in the manner provided by the statute, who actually attend and are impaneled and sworn according to law. Such a grand jury is lawfully constituted.
Likewise the failure of the clerk of the circuit court to issue a summons requiring the clerk of the county court to attend the drawing of grand jurors does not affect the legal status of a grand jury, provided the clerk of the county court does actually attend and assist in the drawing of such grand jurors.
The presence of the clerk of the county court at the drawing of grand jurors, and the list of names of persons selected by the county court to serve as such, as well as its delivery to and preservation by the clerk of the circuit court, are all indispensable requirements, and a failure to comply with all or any one, of them renders the grand jury illegal and their indictments void, because not selected in the manner provided by law. Respecting these matters the statute is mandatory.
It is the policy of the law to preserve inviolate the secrecy of proceedings before the grand jury, and the discussion of evidence before them, relating to an alleged crime which they are then considering, by persons not sworn to testify as witnesses, will vitiate an indictment returned by them whether they were actually influenced by such discussion or not. The law seeks to guard against even the possibility of such influence.
An indictment charging defendant, the cashier of a bank, with embezzling money belonging to the bank, at divers times "beginning with the said 27th day of April, 1906, and ending with the said ______ day of July, 1909," stating the aggregate amount of such various sums charges but a single act of embezzlement, and does not contravene section 5, c. 158, Code 1913 (sec. 5554).
In a trial for embezzlement, it is proper to admit evidence tending to prove that defendant, the cashier of a bank, forged certain notes for the purpose of falsifying the bank's accounts. Such evidence is admissible on the question of intent to embezzle.
A plea in abatement filed in a case is a part of the record, and it is not necessary to except to the action of the court in sustaining a demurrer thereto, in order to claim the benefit of error alleged to have been committed in sustaining the demurrer.
Error to Circuit Court, Roane County.
O. B. Wetzel was convicted of embezzlement and brings error. Reversed and remanded.
Ryan & Boggess, Harper & Baker, and G. F. Cunningham, all of Spencer, Warren Miller, of Ripley, and Hogg & Hogg, of Pt. Pleasant, for plaintiff in error.
A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.
Defendant was tried and convicted on an indictment for embezzlement, and brings error.
Before pleading in bar, he filed four several pleas in abatement, three of them challenging the validity of the indictment on the ground that the grand jurors had not been selected in the manner provided by law, and the fourth on the ground that certain persons, not sworn as witnesses, were permitted to appear before them, while they were engaged in their deliberations, and discuss with them, and make suggestions respecting, the evidence on which the indictment was found. Demurrers to all these pleas were sustained, and that ruling is one of the errors assigned.
The first plea avers that no grand jury was lawfully impaneled to serve at the term of court at which defendant was indicted, because the clerk did not, at least 30 days, or at any other time, before the beginning of the said term, issue a writ of venire facias. It does not aver that the persons appearing and serving as grand jurors were not drawn from the box containing the ballots with the names of those listed by the county court to serve as such in the manner provided by section 2, c. 157, Code 1913 (sec. 5538). The plea presents the single question whether, in view of the method now provided by statute for selecting persons to serve as grand jurors, a venire facias is indispensable. At common law such a writ was necessary. It was the sheriff's precept and authority, and without it he could not summon a grand jury, and one summoned without the writ was powerless to act. Whitehead v. Commonwealth, 19 Grat. (Va.) 640; Nicholls v. State, 5 N. J. Law, 539; 20 Cyc. 1312. But the statute has provided a different method of selecting both petit and grand jurors, which takes the place of the common-law method. The sheriff has no longer the right to select; he can only summon those whose names have been drawn from the box, except when some of them have failed to appear, and he has been directed by the court to summon others in their places. Hence the only purpose of a venire facias now is to authorize the summoning of the 16 men who have been drawn to serve as grand jurors. Suppose they are notified that they have been drawn, and they do appear at court and are impaneled and sworn and actually serve as grand jurors, must their proceedings be held void for want of a writ commanding the sheriff to summon them? To so hold would certainly be very unreasonable and hypertechnical. The statute in this particular is directory merely, and a venire facias is no longer essential to the constitution of a legal grand jury. 20 Cyc. 1307. Apropos to this question, see State v. Medley, 66 W.Va. 216, 66 S.E. 358, 18 Ann.Cas. 761, and State v. Taylor, 57 W.Va. 228, 50 S.E. 247. The Supreme Court of Pennsylvania, in Commonwealth v. Slater, 2 Pears. (Pa.) 461, held that, if a grand juror, selected in the manner provided, attended court, it made no difference how he was summoned. A similar holding by the Supreme Court of Kentucky is found in Commonwealth v. Graddy, 4 Metc. (Ky.) 223. A venire facias can have no possible effect upon the selection of persons to serve as grand jurors, and a grand jury, which has been selected in the manner provided by the statute, is not rendered illegal by the failure of the clerk to issue a writ of venire facias. The demurrer to this plea was properly sustained.
The other pleas present more serious questions. Plea No. 2 avers that the clerk of the circuit court did not issue a summons for the clerk of the county court to appear at the office of the former, before the term of court at which the indictment was found, to assist in drawing from the box the names of persons to serve as grand jurors, pursuant to section 3 of chapter 157, Code 1913; and that the clerk of the county court did not attend such drawing. Section 2 of chapter 157 provides for making up the list of persons to serve as grand jurors for the year, in the following manner, viz.: The county court, at its levy term, and at any other time when required by an order of the circuit court, shall prepare a list of not less than 100 nor more than 150 names of freeholders of the county, to be selected from the various magisterial districts, as near as may be in proportion to their respective populations, who shall be qualified jurors. The list so made out is then to be delivered to the clerk of the circuit court, whose duty it is to safely keep the same. At the time of making out the list, the county court is required to have the name of each person appearing on the list clearly written, each on a like separate paper or ballot. The ballots are then to be folded or rolled up so as to resemble each other as near as may be, and the names from each magisterial district are to be inclosed in a separate envelope, indorsed with the name of the district and the number of ballots inclosed, and the envelopes placed in a secure box which shall be delivered to, and safely kept by, the clerk of the circuit court. Continuing, the statute says the box "shall be opened only on the order of the court, or by the clerk of the county court, or a justice as hereinafter described." By section 3 of the same chapter it is provided that all grand jurors shall be selected by drawing ballots from said box, and the persons whose names are drawn shall be returned to serve as grand jurors. The statute directs the clerk of every circuit court to issue a venire facias for 16 grand jurors at least 30 days before any term of court at which a grand jury may be wanted; section 1 of the chapter providing that a grand jury shall be drawn for every term, unless the court, or the judge in vacation, by order addressed to the clerk 20 days before the term, dispenses with a grand jury at that term. Quoting the statute in relation to the provision which the plea alleges has been violated:
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