Waller v. Commonwealth

Decision Date13 October 1941
Citation16 S.E.2d 808
CourtVirginia Supreme Court

Error to Circuit Court, Pittsylvania County; J. T. Clement, Judge.

Odell Waller was convicted of first-degree murder, and he brings error.



Thomas H. Stone and Howard H. Davis, both of Richmond, and John F. Finerty and Morris Shapiro, both of New York City, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen., for the Commonwealth.

CAMPBELL, Chief Justice.

The accused, Odell Waller, was indicted for the murder of Oscar Davis. He was found, by a jury, guilty of murder in the first degree and sentence of death was pronounced by the trial court.

Upon the calling of the case for trial, counsel for the accused filed a motion to quash the indictment, on the ground that the indictment was returned by a grand jury from which non-poll tax payers had been excluded. This motion the court overruled.

After a plea of not guilty was interposed by the accused, counsel for the accused moved the court to quash the venire facias, on the ground that "said venire facias had been selected from a list of poll tax payers of the county of Pittsylvania, and that such manner of selection denied him his right to a trial by a jury of his peers, and deprived him of due process of law and equal protection of the laws in contravention of the eighth section of the Virginia Bill of Rights and the Fourteenth Amendment of the Constitution of the United States." This motion the court denied.

The action of the court in overruling these two motions is assigned as error.

It conclusively appears from the record, as shown by Bill of Exceptions number one and Bill of Exceptions number two, that accused did not offer any proof whatsoever to sustain the two motions.

The sole reliance of the accused to sustain the motions is based upon a presumption, and not upon evidence. This is shown by the petition for a writ of error, which contains this statement: "It must be presumed then, that both the grand jury in the instant case and the petit jury panel were selected solely from those possessing the constitutional qualifications of voting, which means solely from poll tax payers. Therefore there was no necessity to offer proof that either the grand or petit juries were so constituted."

The crux of the contention is That the grand jury which indicted the accused, and the petit jury which tried him, were selected by a method which discriminated against a particular social or economic group, viz.: non-poll tax payers, and thereby, the accused was denied equal protection of the laws.

The solution of this contention must be based upon a fact and not upon a presumption.

There is not a scintilla of evidence in the record to show that accused had, or had not paid a poll tax; hence, he is in no position to complain of such discrimination, had it existed.

In Grosso v. Commonwealth, 177 Va. 830, 13 S.E.2d 285, 288, Mr. Justice Eggleston said:

"It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby. It avails him nothing to point out that some other person might conceivably be discriminated against.

"As this court said in Carpel of Richmond, Inc., v. City of Richmond, 162 Va. 833, 842, 175 S.E. 316, 319: 'Before one can ask that a statute be declared unconstitutional, he must show that he has been injured. Until that has been done, it is, so far as he is concerned, but a moot question.' "

That such a discrimination does not exist is manifest from an examination of the organic and statutory law applicable.

There is no provision in the Constitution of the Commonwealth of Virginia prescribing the qualifications of a grand juror or a petit juror. The only qualifications for a grand juror or a petit juror are those found in the statutory enactments of the legislature.

Section 4852 of the Code, as amended by Acts 1934, c. 85, p. 80, provides that the judge of the circuit court shall annually "select from the male citizens of each county * * * forty-eight persons twenty-one years of age and upwards, of honesty, intelligence, and good demeanor, and suitable in all respects to serve as grand jurors who shall be the grand jurors for the county * * * for twelve months next thereafter. Such jurors shall be selected in each county from the several magisterial districts of the county * * *."

Section 4853 of the Code, as amended by Acts 1932, c. 395, p. 814, provides: " * * * Each grand juror shall be a citizen of this State, twenty-one years of age, and shall have been a resident of this State two years, and of the county or corporation in which the court is to be held one year, and in other respects a qualified juror, * * *."

Section 5984 of the Code, as amended by Acts 1936, c. 227, p. 379, provides: "All male citizens over twenty-one years of age who shall have been residents of this State one year, and of the county, city or town in which they reside six months next preceding their being summoned to serve as such, and competent in other respects, except as hereinafter provided, shall remain and be liable to serve as jurors; * * *."

Notwithstanding the plain language of the statutes, it is earnestly contended that the language in section 4853, "and in other respects a qualified juror, " and the language in section 5984, "and competent in other respects, " should be construed as referring to the constitutional provision dealing with the qualification of a voter, to-wit, the payment of a poll tax, Const. art. 2, § 18; and that grand jurors and petit jurors "must possess constitutional qualifications of voting." This contention is untenable.

The identical point was raised in Booth's case, Booth v. Com., 16 Grat. 519, 57 Va. 519. In construing the pertinent language, Judge Moncure said:

"Again it may be said, that the 4th sec. of ch. 206 of the Code, p. 767, which still remains in force, requires that 'for every grand jury there shall be summoned twenty-four citizens of this state, who are freeholders of the county or corporation in which the court is to be held, and in other respects qualified jurors, and not constables, ' &c, and that the words 'in other respects qualified jurors' must refer to the first section of the act of 1853, as there is no other act now in force which creates any other qualification than those contained in the 4th section itself of ch. 206 of the Code. I have already had occasion to notice why these words were inserted in the Code, and they lost much if not most of their meaning by the amendment in the legislature of chapter 162, § 1 of the Code, as reported by the revisors, while no corresponding change was madein chapter 206, § 4. Still the words are not without meaning as the law now stands. There are common law qualifications of grand jurors to which the words may refer. They were required to be probi, aut liberi, et legales homines. 5 Bac. Ab Juries A, p. 311, E. 347. And therefore, we are told, it is a good exception at common law to one returned on a grand jury, that he is an alien, or villein, or that he is outlawed for a crime, or that he was not returned by the proper officer, or that he was returned at the instance of the prosecutor. Id. 311. Again, in reference to the qualification of jurors, that they should be liberi et legales homines, the same author says: 'Hence it has been always clearly holden that aliens, minors or villeins cannot be jurors.' Also infamy is a good cause of challenge to a juror; as that he is outlawed, or that he hath been adjudged to any corporal punishment whereby he becomes infamous, or that he hath been convicted of treason, or felony, or perjury, &c. Id. 347. Indeed, the Code, p. 734, § 3, expressly makes conviction of perjury a disqualification; and this is one case at least to which the words in question may refer. That some of these common law disqualifications may be merged in statutory provisions in regard to them, cannot affect others not so merged."

It is argued by counsel that the Booth case is not in point, as it was dealing with a provision of the Code of 1849 and is not applicable to either of the provisions of the present Constitution or Code section 4853.

The answer to this contention is found in the Revisors' notes to section 4853. There we read:

"The phrase, 'in other respects a qualified juror, ' must be interpreted according to the common-law and the statutory requirements for jurors. The common-law requirement is that they should be probi aut liberi et legales homines. Therefore it is a good exception at common law to one returned on a grand jury that he is an alien or a minor, or was not returned by proper officer, or that he was returned at the instance of the prosecutor. Also infamy is a good cause for challenge to a juror, or that he hath been convicted of treason, felony, perjury, etc. Booth's case, [Booth v. Com.], 16 Grat. 519, 527 .

"For present statutory requirements, see sections 5984 et seq."

The next assignment of error challenges the action of the trial judge in refusing to disqualify himself from presiding at the trial of the accused.

The incident complained of arose in the course of argument on motion for a continuance of the case. When the case was called for trial on September 19, 1940, counsel moved for a continuance, on the ground that only three days had elapsed since the accused had been indicted and that this was not sufficient time in which to prepare for a trial of the case.

In passing upon the motion for a continuance, the trial judge indulged in the following comments:

"The Court:......

"Stenographer: Would you mind speaking a little louder, please: I can't quite hear what you say.

"The Court: Speaking to the Stenographer: I don't care whether you get it or not. A Trial Court does not have to give any reasons for its rulings. It is...

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