Waller v. Commonwealth

• Decision Date: 13 October 1941
• Docket Number: Record No. 2442.
• Parties: ODELL WALLER v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 294

178 Va. 294

ODELL WALLER v. COMMONWEALTH OF VIRGINIA.

Record No. 2442.

Supreme Court of Virginia, Richmond.

October 13, 1941.

Present, All the Justices.

1. JURY — Right to Trial by Jury — Contention of Denial of Right Must Be Supported by Evidence — Case at Bar. — In the instant case, a prosecution for homicide, accused filed a motion to quash the indictment and, after a plea of not guilty was interposed, moved to quash the venire facias on the ground that the grand jury which indicted the accused and the petit jury which tried him had been selected from a list of poll tax payers and that such selection denied him a 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. Accused offered no proof whatsoever to sustain the two motions but relied solely upon a presumption. There was not a scintilla of evidence in the record to show that accused had, or had not, paid a poll tax.

Held: That the motions were properly overruled and that because of the lack of evidence accused was in no position to complain of the discrimination, had it existed. The solution of this contention must be based upon a fact and not upon a presumption.

2. CONSTITUTIONAL LAW — Constitutionality of Statutes — Person Challenging Constitutionality Must Show that He Has Been Injured. — 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.

3. CONSTITUTIONAL LAW — Constitutionality of Statutes — Question of Constitutionality Moot if Attacker Not Injured. — Where one who attacks a statute on the ground that it is unconstitutional does not show that he has been injured thereby, the question is, as far as the attacker is concerned, a moot question.

4. JURY — Qualifications of Grand and Petit Jurors — Need Not Possess Constitutional Qualifications of Voting — Case at Bar. — In the instant case, a prosecution for homicide, accused filed a motion to quash the indictment and, after a plea of not guilty was interposed, moved to quash the venire facias on the ground that the grand jury which indicted the accused and the petit jury which tried him had been selected from a list of poll tax payers and that such selection denied him a 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. Accused offered no proof whatsoever to sustain the two motions but relied solely upon a presumption. There was not a scintilla of evidence in the record to show that accused had, or had not, paid a poll tax. Accused contended that section 4853 of the Code of 1936, setting forth the qualifications for grand jurors and containing the phrase, "and in other respects a qualified juror", and section 5984 of the Code of 1936, stating who are liable to serve as jurors and using the language "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; and that, consequently, grand jurors and petit jurors must possess constitutional qualifications of voting.

Held: There was no merit in the contention of accused.

5. GRAND JURY — Qualifications of Jurors — Code Section 4853 Interpreted according to Common Law and Statutory Requirements. — The phrase, "in other respects a qualified juror", as used in section 4853 of the Code of 1936, providing who is qualified to serve on the grand jury, 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.

6. CRIMINAL LAW — Trial — Trial May Be Called Shortly after Time of Indictment — Case at Bar. — In the instant case, a prosecution for homicide, the case was called for trial three days after accused was indicted, at which time counsel for accused asked for a continuance in order to prepare for trial. The continuance was denied, and counsel for accused contended that the action of the trial judge in refusing the continuance was arbitrary and in a spirit of irritation. The refusal of the trial judge to disqualify himself from presiding at the trial of the accused was assigned as error.

Held: No error. Trial judges are but mere mortals and the fact, if such be the case, that they become irritated at the prospect of the law's delay, is not sufficient to cause a reversal of a case, unless it palpably appears that such conduct could have militated against the accused to the extent that he was denied a fair trial according to law.

7. CHANGE OF VENUE — Grounds — Rumors — Case at Bar. — In the instant case, a prosecution for homicide, it was assigned as error that the trial court erred in refusing to grant a change of venue. A witness was introduced who testified that he was a paid employee whose duty it was to assist in the defense of the accused and that he had heard three different persons in the county indulge in expressions of animus against the accused. Reliance was placed also upon the evidence of the sheriff that some time prior to the trial he had heard a rumor of an attempt to lynch the accused, but the sheriff further stated that very little interest was being shown in the trial, and, in his opinion, the accused would get a fair and impartial trial. The evidence introduced by the Commonwealth refuted any suggestion of violence and the record utterly failed to even indicate that the accused was tried in a hostile atmosphere.

Held: There was no merit in the assignment of error.

8. JURY — Qualifications of Jurors — Farmers Frequently Serve. — It is a matter of common knowledge that in the various counties of the Commonwealth the vast majority of those who are called to serve as jurors are farmers, who by reason of their high standing as citizens, have been selected to perform this most important service.

9. JURY — Challenge — That Jurors Employed Share Croppers Insufficient Although Accused Was Share Cropper — Case at Bar. — In the instant case, a prosecution for homicide, error was assigned upon the refusal of the court to sustain the challenge of the accused to eight of the veniremen called as jurors. The jurors were challenged solely on the ground that, as shown by the examination on their voir dire, they were farmers and employed as tenants persons who, like the accused, received a share of the crop in return for the labor performed.

Held: That no discrimination was made against the accused and assignment was without merit.

10. JURY — Challenge — Statement of Juror that He Could Hear without Prejudice — Case at Bar. — In the instant case, a prosecution for homicide, accused assigned as error the action of the court in accepting a certain juror. Accused was a share cropper, and his counsel asked the juror whether, if it developed that a conflict arose between a share cropper and landlord, it would or would not have any effect in prejudicing him one way or other. The juror replied, "I don't think I would have any trouble", and counsel challenged for the reason that he stated, "I don't think". Before ruling on the motion the Court asked the juror whether he could go into the jury box and give a fair and impartial trial regardless of how the case developed and the juror replied, "Yes, sir, I can".

Held: That the juror was properly accepted by the Court.

11. DYING DECLARATIONS — Admissibility — Foundation for Admissibility — Sense of Impending Death. — Dying declarations are admissible only in case of homicide, when made by the person injured touching the cause of his death, while actually in extremis, and conscious that he is so, under a sense of impending death, and without any expectation or hope of recovery.

12. DYING DECLARATIONS — Admissibility — Foundation for Admissibility — Sense of Impending Death — Case at Bar. — In the instant case, a prosecution for homicide, error was assigned to the admission in evidence of the alleged dying declaration of the victim of the homicide. When visited by his sons in the hospital the day prior to his death, he stated to each son that he was not going to live and that accused shot him. His last two declarations before death were that he was going to die.

Held: There was no merit in this assignment of error.

13. HOMICIDE — Intervening Cause — Surgical Aid Not Cause of Death — Case at Bar. — In the instant case, a prosecution for homicide, accused assigned as error the action of the trial court in overruling a motion to strike out all instructions dealing with the question of homicide. The motion was based on the ground that the Commonwealth had not proved beyond a reasonable doubt that the deceased suffered death as a result of the wounds inflicted by the accused, the contention being that death was due to the collapse of the lung following an operation performed in an attempt to save the deceased and not to the bullet wounds. The physician who examined the deceased testified that the operation was necessary because of the bullet wounds and that a pulmonary collapse follows in a certain percentage of operations.

Held: That there was no merit in the contention of the accused.

14. VERDICT — Effect — Conclusiveness of Verdict of Guilty. — A verdict of...