Wormeley v. Commonwealth

• Decision Date: 04 May 1853
• Citation: 51 Va. 658
• Parties: WORMELEY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

51 Va. 658

WORMELEY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 4, 1853

1. QUÆ RE: If a coroner has authority to commit to jail for trial a person charged by the inquest with felony.

2. If he has not such authority, it is too late to object to it after the prisoner has been regularly examined and sent on for trial, and has been indicted for the felony in the Circuit court.

3. A justice of the peace acting as coroner, and having as coroner committed a person to jail for felony, may certify the fact of such committal as a justice of the peace.

4. Upon an application of a prisoner charged with murder, for a change of the venue, his affidavit alone, of his fears or belief that he cannot obtain a fair trial in the county, is not sufficient to sustain the motion; but he should be required to show by independent and disinterested testimony such facts as make it appear probable at least that his fears and belief are well founded. But where such facts are shown by the prisoner, and are not successfully repelled or explained by the commonwealth, no argument of inconvenience or delay should be permitted to stand in the way of the great end to be attained, a fair and impartial trial.

5. What is insufficient to sustain a motion for a change of venue by a prisoner in a prosecution for murder.

6. The court being satisfied from the evidence that a witness is absent with the connivance of the prisoner, her absence is not ground for a continuance on his motion.

7. The regular term of the court having been spent, and only one of the veniremen summoned to try a prisoner, having been found free from exception, the court discharges him, and being of opinion that jurors qualified to serve cannot be gotten in the county, makes an order directing the sheriff to summon thirty persons from each of two corporations, to attend as jurors for the trial of the prisoner at a special term of the court appointed to be held, and to which time the court adjourns. HELD: It was not necessary to have another venire facias for summoning jurors from the county returnable to the special term, before making the order to summon jurors from abroad; and there was no error in directing jurors to be summoned from two counties or corporations at the same time.

8. A juror summoned for the trial of a prisoner, fails to appear on the day to which he is summoned, but appears at another day under a rule to show cause why he shall not be fined for failing to appear. If in other respects qualified, he may be put upon the panel; that not having been completed when he appears.

9. After the original venire is exhausted without completing the panel, the court may order any number of persons to be summoned it may think necessary; and if the sheriff for want of time or other cause, fails to summon the whole number, his return is valid for as many as are summoned.

10. The prisoner objects to a juror, and his objection is overruled and he excepts. After the panel is made up but before the prisoner has exercised his right of challenge, the court, on the motion of the attorney for the commonwealth, out of abundant caution, sets aside the juror. This is not error.

11. What is not such an opinion as will disqualify a juror for serving on a trial for felony.

12. On a trial for murder, to contradict a witness for the prisoner it is competent to introduce in evidence a deposition given by him before the inquest, taken down at the time by the coroner and read to the witness, and signed by him.

This is the sequel of the case of the Commonwealth v Wormeley, reported in 8 Grattan 712. The prisoner was again tried at a special term of the Circuit court of Chesterfield, held in January 1853, was found guilty of murder in the first degree, and was sentenced by the court to be hung on the 15th day of April following. The prisoner thereupon applied to this court for a writ of error to the judgment; and in his petition set out twelve grounds of error.

When the prisoner had been arraigned for trial originally, he filed a plea in abatement, that he had not been regularly and legally examined by a competent court of justices. The ground of this plea was that the certificate of the committal of the prisoner for examination was by Samuel H. Royall a justice of the peace, who acted as coroner upon the inquest, and that he made the certificate as acting coroner. The attorney for the commonwealth filed a replication to this plea, setting out the record of the proceedings of the examining court, in which the certificate is given. It commences as follows:

" Chesterfield County, to wit: To the Clerk of the County Court of said County. I, Samuel H. Royall, a justice of the peace of the said county, do hereby certify that on the 17th day of July 1851, acting as coroner in the absence of the coroner, I committed to the jail of the said county, by my warrant, John S. Wormeley and James Reid, that they may be examined before the County court of the said county for a felony by them committed, in this," &amp c., setting out the offence charged. To this replication the prisoner demurred, and the court overruled the demurrer. This was the first ground of error assigned.

The judgment of the General court directing that the prisoner should have a new trial was entered at the November term 1852 of the Circuit court of Chesterfield. At that term of the court the prisoner twice moved for a change of venue on the ground that a violent prejudice existed against him in the county, which would prevent his having a fair and impartial trial, even though the jurors should be brought from another county. Both of these motions were overruled by the court, and the prisoner excepted. These constitute the second and fourth ground of error assigned by the prisoner. The evidence is sufficiently stated in the opinion of the court. The prisoner also moved for a continuance of the cause, on the ground of the absence of material witnesses, which was refused; and he again excepted. This constitutes the third ground of error assigned by the prisoner.

The cause, however, was not tried at the November term of the court, the whole term having been spent before a jury could be obtained; and it was therefore adjourned to a special term to be held on the 11th day of January 1853. And but one juror having been found qualified to serve on the panel, he and those who had been subsequently summoned as veniremen, were discharged; and the sheriff of the county was directed to summon from each of the cities of Richmond and Petersburg, thirty jurors qualified as the law directs, to attend court on the first day of the special term; of whom to form a jury for the trial of the prisoner.

On the calling of the cause for trial at the special term of the court in January, the prisoner again moved for a continuance, on account of the absence of material witnesses; but the court overruled the motion; and he again excepted. This constitutes the twelfth ground of error assigned by the prisoner. The evidence on this and the third error assigned is stated in the opinion of the court.

The court having overruled the motion for a continuance, and the sheriff having returned that in obedience to the order made at the November term of the court he had summoned thirty persons from each of the cities of Richmond and Petersburg, the prisoner by his counsel moved the court to quash the order and return of the sheriff in obedience thereto, on the ground that the court had no authority to make the order until an ordinary venire facias had been first awarded to summon jurors to the special term of the court; and that it was error to direct jurors to be summoned from two counties or corporations at the same time. But the court overruled the motion; and the prisoner again excepted. This constitutes the fifth assignment of error.

The sixth error complained of is for overruling the motion of the prisoner to exclude one of the veniremen, Peter R. Davis, from the panel, for cause; and the tenth error assigned is for overruling a like motion to exclude another venireman, William H. Brown. Davis, who had been summoned from Petersburg, when examined on his voir dire, said, " That he had not expressed any opinion in relation to the guilt or innocence of the prisoner, but that he had heard opinions expressed by persons in whom he had great confidence, which had produced some prejudice and feeling upon his mind. That he had had no conversation with any of the witnesses or any of the jurymen who sat upon the former trial, and had not read or heard any statement of the facts of the case; but what he had heard had been the opinions or conclusions of those with whom he talked, without any statement of the facts on which their opinions were founded; but they gave some history of the parties." --" By prejudices he meant the impression on his mind. He did not know the prisoner, and had no personal ill will against him or his cause. That he had rather formed an opinion upon the case, but believed he might trust himself to try the case according to the evidence developed on the trial. That he had not determined that no evidence should shake the prejudice and impression on his mind, but that it would require evidence to dispel or remove them; and that he did not stand upon that footing on which he would stand if he had never heard of the case; that he could not try the case as if he had never heard of it; nor does he believe that any body else could; but that his mind is open to conviction."

Brown stated, " That he had received representations of the case from rumor, upon which he had formed an opinion, if the representations were true. That he knew neither the prisoner or the deceased, nor had heard any evidence or had any representation from such as had. ...