Wright v. Commonwealth

• Decision Date: 22 July 1880
• Citation: 74 Va. 880
• Parties: WRIGHT v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

74 Va. 880

WRIGHT v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

July 22, 1880

Absent Burks, J.

I. Upon an application by the prisoner to change the venue upon the ground that an impartial jury cannot be had in the county, the application is refused; and a jury is obtained in the county. HELD:

1. If the prisoner feared he could not get an impartial jury in the county, he should first have asked that jurors should be sent for from another county. And not having done this, and an impartial jury having been in fact obtained, the appellate court will not set aside the verdict for the refusal of the court to change the venue.

II. To constitute a willful, deliberate and premeditated killing constituting murder in the first degree, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that said intention should come into existence for the first time, at the time of such killing, or any time previously.

This was an indictment in the county court of Bedford, of Peter Wright for the murder of Robert Maupin. The case was once before in this court, when the judgment was reversed, on the ground that an incompetent juror had been admitted to serve on the jury. On the second trial of the prisoner there was a verdict of murder in the first degree, and the court sentenced him to be hung. And thereupon the prisoner applied to this court for a writ of error; which was allowed. The case is fully stated by Judge Moncure in his opinion.

Jordan and Claytor, for the appellant.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE, P.

This is a writ of error to a judgment of the county court of Bedford county, rendered on the 27th day of March, 1880, condemning the plaintiff in error, Peter Wright, for murder in the first degree, of which he had just been convicted in the said court, and sentencing him to be hung therefor. A petition was presented by the said plaintiff in error to the judge of the circuit court of said county for a writ of error to the said judgment of the said county court, which was denied by the said judge. And thereafter a petition was presented by the said plaintiff in error to the judges of this court for a writ of error to said judgment, which writ of error was thereupon awarded. The question presented to this court by the said petition to the judges thereof, and the record of the proceedings in the case of which a copy accompanies the said petition, is whether there be error in the said judgment or not, for which the same ought to be reversed.

There are two, and only two, assignments of error in the said petitions, which will be considered and disposed of in the order of the said assignments.

The first is, in refusing to grant said petitioner a change of venue.

The following appears from the record to be the state of the case in regard to this assignment of error:

" At the county court continued by adjournment and held for Bedford county at the courthouse on Wednesday the 25th day of February, A. D. 1880, Peter Wright, who stands indicted for murder, was again led to the bar in custody of the sheriff of this county, and the prisoner by his counsel moved the court for a change of venue to the county court of some adjacent county; which motion was defended by the attorney for the Commonwealth, and being argued, the court doth overrule said motion; and on the motion of the prisoner, and for reasons appearing to the court, it is ordered that his trial be postponed until the next term of the court.

And at another day, to-wit: At a county court continued by adjournment and held for Bedford county at the court-house, on Tuesday the 23d day of March, A. D. 1880, Peter Wright who stands indicted for murder, was again led to the bar in custody of the sheriff of this county, and the prisoner by his counsel moved the court for a change of venue to the county court of some adjacent county; which motion was defended by the attorney for the Commonwealth, and being argued, the court doth overrule said motion; and the writ of venire facias awarded for the trial of the prisoner being returned according to law, the court proceeded to impanel a jury for his trial, and a panel of sixteen jurors, free from exception, being formed according to law, the prisoner struck therefrom the names of four persons, leaving the remaining twelve persons to compose the jury for his trial, to-wit: (here follow the names of the jurors) who were duly sworn to well and truly try and true deliverence make between the Commonwealth and the prisoner, and a true verdict render according to the evidence. And having heard the evidence in part, the said jury were, with the consent of the prisoner, committed to the custody of the sheriff of this county, who is directed to keep them together without communication with any other person, and to cause them to appear in court to-morrow morning at nine o'clock; and thereupon an oath was administered to two deputies of the sheriff of said county, to the following effect: ‘ You shall well and truly, to the best of your ability, keep this jury, and neither speak to them yourselves nor suffer any other person to speak to them touching any matter relative to this trial until they return into court to-morrow morning; ’ and the prisoner is remanded to jail. And

At another day, to-wit: at a county court continued by adjournment and held for Bedford county at the court-house on Wednesday, the 24th day of March, A. D., 1880, Peter Wright, who stands indicted for murder, was again led to the bar in custody of the sheriff of this county, and the jury adjourned on yesterday were brought into court in charge of the sheriff of this county, pursuant to their adjournment; and the said jury having fully heard the evidence and arguments of counsel, retired to their room to consult of a verdict, and after sometime returned into court and upon their oath do say: ‘ We the jury, find the prisoner, Peter Wright, guilty of murder in the first degree,’ and the prisoner is remanded to jail."

To the said opinion of the said county court, overruling the motion of the prisoner for a change of venue as aforesaid, he filed a bill of exceptions, which was signed, sealed and ordered to be made a part of the record, and is in the words following to-wit:

" Be it remembered that upon the trial of this case, and before the jury were impaneled, the prisoner, by his counsel, moved the court for a change of venue from this to some other county court of this Commonwealth; but the court overruled said motion; to which opinion of the court the prisoner excepts, and prays that this, his bill of exceptions may be signed, sealed and made a part of the record; which is accordingly done. And to save the prisoner the benefit of his exception, certifies that the prisoner, in support of his said motion, offered the following affidavits, which are in the words and figures following, to-wit:

Affidavit No. 1.

This day personally appeared before me, J. Morton Speece, a deputy clerk of the county court of Bedford, Peter Wright, who stands indicted in said court for murder, and made oath that he has reasons to believe and does believe that there exists throughout this entire community and in the county of Bedford great prejudice against him; that so great is this prejudice that he believes it would be utterly impossible, were he again put upon trial here, to obtain a fair and an impartial verdict at the hands of a jury of this county; that at the trial heretofore had this court was unable to obtain such a jury as the law requires, on account of this very prejudice; that at the time said trial was had, various rumors and newspaper reports of his case were circulated throughout the county, to such an extent as to be known, as this affiant is informed and believes, to nearly every citizen in the county; that several months having elapsed since said trial, these reports and rumors have become more widely circulated, and at this time he believes that there cannot be found a single citizen in this county who has not either expressed a decided opinion or fully made up his mind as to the guilt or innocence of this affiant, and in nearly every case to his prejudice.

Your affiant states that he does not file, as he would wish to do, affidavits from citizens of this county in support of the facts herein stated, for the reason he is a poor colored man that has been unable, on account of extreme prejudice, to obtain such affidavits; that his counsel have made oft and repeated efforts to obtain from citizens of this county their affidavits to the truth of these statements; that in nearly every case these citizens have openly expressed the opinion that a fair and impartial trial cannot be had within the county by a jury of the county, but on account of public opinion they decline to allow their affidavits to be used in this case, so great is their prejudice against this affiant.

This affiant further states that, in view of these facts, he does not think that he could go safely into trial here; that he will be again put upon trial for his life, and for this reason he believes that he should be granted every privilege the law in its mercy allows, and he believes that this court being cognizant of these facts ought not and will not permit this affiant to be tried by a jury of this county.

Given under my hand this the 27th day of January, 1880.

J. MORTON SPEECE, D. Clerk. "

" Affidavit No. 2.

Virginia--city of Lynchburg, to-wit:

This day Peter Wright made oath before me that he has been credibly informed and believes that there is great prejudice against him in the county of Bedford; that it has been publicly manifested in the newspapers by a...