State v. Williams
| Citation | 49 W.Va. 220,38 S.E. 495 |
| Court | Supreme Court of West Virginia |
| Decision Date | 16 March 1901 |
| Parties | STATE . v. WILLIAMS. |
INDICTMENT — VALIDITY — CRIMINAL LAW-WITHDRAWAL OF JUROR—TRIAL-SWEARING WITNESS.
1. An indictment is not bad for its omission to state that the grand jury was attending the court.
2. A court in a felony case may, for good cause, without the consent of the accused, withdraw a juror, and substitute another. The accused is entitled to a peremptory challenge of such juror, but must claim it, else he waives it.
3. Whether a party shall introduce further evidence after that of the adverse party has been heard, is a matter within the sound discretion of the court, and its exercise will rarely, if ever, be the cause of reversal. Clearly, he is entitled to introduce evidence to rebut that of the other party.
4. If a mistake in not swearing a witness is discovered before the jury retires, it may be corrected either by swearing the witness and rehearing his evidence, or by instructing the jury to disregard his evidence.
5. If there is an omission to swear a witness, and the court instructs the jury to disregard his evidence, and the prisoner then makes no exception to the action of the court, and does not then rely on such omission, he cannot, for that cause, sustain a motion to set aside the verdict.
(Syllabus by the Court.)
Error to circuit court, Raleigh county; J. M. Sanders, Judge.
James P. Williams was convicted of murder, and brings error. Affirmed.
T. G. Mann and T. N. Read, for plaintiff in error.
Edgar P. Rucker, Atty. Gen., and Luther C. Anderson, for the State.
BRANNON, P. James P. Williams was sentenced to the penitentiary upon a conviction of murder in the second degree in killing John Meadows for the term of 10 years, by the circuit court of Raleigh county, and he asks this court to reverse that sentence on several grounds.
One of his objections against the judgment is the refusal of the court to hold the Indictment bad for omitting to state that the grand Jury was in attendance upon the circuit court of Raleigh county. That is notmaterial in the indictment. It does not enter into the charge. Its omission could not prejudice the accused. The record showed an indictment in that court, and the grand Jury must have been attending that court, and none other.
Another complaint Is that the court withdrew one of the jurors after a portion of the evidence had been introduced, and substituted another one, without obtaining the consent of the prisoner, and without tendering the prisoner a peremptory challenge to the new juror. In State v. Davis, 31 W. Va. 390, 7 S. E. 24, under Code, c. 159, § 7, the authority of the court, where the necessity exists, of withdrawing a juror and substituting another, is fully asserted, even against the explicit protest of the party on trial. It does not appear what the reason of this withdrawal of a juror was; but we must presume that it was sickness, or other good cause, until it otherwise appears, as the law presumes that the court performs its legal duty properly. McKinney v. People, 7 ill. 540. Error is not presumed. If no proper reason existed, the prisoner could have shown it by bill of exceptions, but has not done so. State v. Davis, supra, says the court has authority to withdraw a juror in a proper case, and he who asserts that a proper case did not exist ought to be called upon to show it. Another consideration is that the prisoner made no objection to this withdrawal, and never said anything against it until he embodied it in a motion for a new trial. I need not cite law to show that there must be an exception to the action of the court at the time it takes place, and that a party cannot be silent, take his chances of a favorable verdict, and, if it is against him, impeach it for that cause. Exposition v. Ocheltree, 44 W. Va. 626, 30 S. E. 78. As to the right of peremptory challenge, the prisoner did not ask it. It was a right which he could waive. Nobody denied it The court could not thrust it upon him. A party must assert a right which is waivable by him.
Another objection of the prisoner is that the court refused a new trial because a witness for the state had given evidence without being sworn. No one denies that a witness must be sworn. Verdicts have been set aside for the omission to swear a witness. Hawks v. Baker, 6 Me. 72, cited in 29 Am. & Eng. Enc. Law, 764. In the present case the omission was discovered before the jury retired, and the evidence of this witness was, by the court, stricken from the case, and the jury instructed by the court not to consider such evidence, and there was no objection or exception to the action of the court in this respect. The prisoner never mentioned it until after the verdict, and not even then on his first motion for a new trial, but later assigned it as a further ground for a new trial. 1 Thomp. Trials, § 365, says: "It la the duty of the party calling the wit ness to see that he is sworn; though, if the oath is inadvertently omitted, the objection will not be good after verdict." In Slauter v. Whltelock, 12 Ind. 338, it is held that if the omission is discovered before the jury retires, it may be cured either by swearing the witness and rehearing his testimony, or the jury may be instructed to disregard his statement The latter' course was adopted in this case. In Oady v. Norton, 14 Pick. 236, it was held that, where a witness had testified to material facts without being sworn, and the circumstance came to the knowledge of the defendant during the argument of counsel, but after the witness had gone, it was too late to object to the verdict. Chief Justice Shaw said that, where a defect is known, and not seasonably taken advantage of, it is deemed waived, and that a party could not take his chance for a favorable verdict with the power and intent to annul it as erroneous if it should come out against him. The prisoner did not object to the jury going on to consider the case, but by his silence seemed satisfied with the action of the court in excluding the evidence and...
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