Opinion
12-11-1873
CRAFT v. THE COMMONWEALTH.
George C. Cabell, for the prisoner. The Attorney-General, for the Commonwealth.
1. Where a prisoner has been convicted of a felony, and a new trial is granted him, the court may proceed to try him at the same term, against his consent.
2. If a prisoner receives a copy of the indictment and of the list of jurors, at any time before the trial is commenced, though not until the case is called, it would be proper to give the prisoner a reasonable time to examine the indictment and the list of jurors, if he asks it; but it is not a ground for continuing the cause until the next term of the court.
3. In directing jurors to be summoned from another county, the court may make an order directing its officer to summon them, or may direct the clerk to issue a venire facias, requiring the officer to summon them.
4. During the recess of the Corporation court, the sergeant appoints a deputy without the consent in writing of the judge of the court; but the deputy takes the oath of office before the judge, which is in writing and signed by the deputy, and was certified in writing by the judge. This is a sufficient consent in writing by the judge, and the deputy has authority to execute a writ of venire facias, directed to his principal.
5. A Corporation court has authority to direct jurors to be summoned from without the limits of the corporation, for the trial of a prisoner indicted in that court, when an impartial jury cannot be obtained within the corporation.
6. In the sense of the law all parts of the adjoining county, outside of the limits of a corporation, is remote from the place where the offence is alleged to be committed, if it is alleged to be committed within the limits of the corporation.
7. Where jurors are directed to be summoned from an adjoining county, and it appeared that one of the panel had been summoned by mistake or misapprehension of the law or otherwise, from a place near to instead of remote from the vicinage, the objection, if valid, instead of being made to the array of jurors, should be made to the individual juror so summoned.
8. If a person has the constitutional qualifications of a voter, though he has not been registered and has not voted, he is a qualified juror.
9. Upon the trial of a prisoner for murder, before the introduction of the evidence is commenced, the attorney for the Commonwealth may, with the permission of the court, and under its supervision, make a statement to the jury touching the several grades of homicide, and the law in reference thereto.
At the April term 1873 of the Corporation court of Danville, Christopher Craft was indicted for the murder of William Jeffries. At that term of the court his case was continued, on his motion, to the July term, and at the July term, on the motion of the attorney for the Commonwealth, it was continued until August. At the August term of the court the prisoner was tried and found guilty by the jury of murder in the first degree, but the court, on his motion, set aside the verdict and granted him a new trial, to be had at the same term of the court. To the opinion of the court ordering a new trial at the same term of the court the prisoner excepted. This is his first exception.
The new trial of the prisoner was granted on Wednesday the 6th of August, and on the next day the court made an order that a writ of venire facias be issued, directing the sergeant of the town of Danville to summon from the body of the county of Pittsylvania, (which is the county in which the town of Danville is situated,) twenty-four lawfully qualified jurors to appear at the court at 10 o'clock Tuesday morning next, to recognize on their oaths whether the said Christopher Craft be guilty of the murder whereof he stands indicted.
On the calling of the cause on Tuesday the 12th of August, for a new trial, in pursuance of the order of the court, the prisoner, by counsel, moved the court for a continuance of the cause:
First. Upon the ground that the case had been once tried during the present term of the court.
Second. That the prisoner had not been furnished with a copy of the indictment and the list of the jurors, though he had demanded them in writing on the 7th.
The proof was that he did hand to the clerk a written demand for a copy of the indictment and of the venire facias, and a list of the venire summoned to try him, in the court-house on the 7th, when he was told by the clerk that he could furnish him with a copy of the indictment, but that the list of jurors had not been returned to him, and that the writ of venire facias, which had been issued for them, was not returnable until Tuesday the 12th of August, the day designated for the trial: and the prisoner made no further application for the copies. The writ, with the return thereon, was not returned to the clerk until on the morning of Tuesday after the court had been convened.
But as the trial had not been commenced when the motion was made, the court directed the clerk to copy the indictment and a list of the jurors and present them to the prisoner; which being done, the motion for a continuance was overruled: and the prisoner again excepted. This is his second exception.
After the clerk had furnished the prisoner with a copy of the indictment and of a list of the jurors, the prisoner moved the court to quash the writ of venire facias, and to quash the return thereon:
First. To quash the venire facias, upon the ground that the law does not authorize the clerk to issue a venire facias except for the summoning of venire men from the qualified jurors of the county; and this venire facias is issued by the clerk of the Corporation court of Danville to the sergeant of the town of the Danville, directing him to summon twenty-four qualified jurors from the body of the county of Pittsylvania.
Second. To quash the return upon the said writ, upon the ground that J. C. Thornton, who summoned the jury, was not the legally constituted deputy of W. E. Boisseau, sergeant, and therefore had no legal right to execute said writ. The proof was, that on Saturday the 8th of August, the court not sitting on that day, Boisseau, without the written consent of the judge of the Corporation court of Danville, appointed J. C. Thornton one of his deputies, and on that day Thornton took the oaths of office before H. W. Flournoy, the judge of the corporation court. The court overruled the motion; and the prisoner again excepted. This is his third exception.
On the calling of the cause on the 12th of August, after the venire summoned to try the same had been convened, and before they had been sworn on their voir dire, the prisoner, by counsel, challenged the whole array, and excepted to the whole panel, and asked that the same and the writ of venire facias and the return thereon be quashed, for the following reasons, to wit:
First. For the reason that J. C. Thornton was not and is not a properly constituted deputy of W. E. Boisseau, sergeant, and had no legal authority to summon jurors or veniremen.
Second. That the clerk had no authority to issue a writ of venire facias, directing that veniremen or jurors be summoned from the county or from anywhere, except the corporation of Danville.
Third. For the reason that the Corporation court has no authority to summon jurors, except from the corporation over which it has jurisdiction.
Fourth. That even if there had been authority in the court to direct that a jury be procured from the county of Pittsylvania, and the writ of venire facias had properly issued and had been properly served by a legally constituted officer, it was the duty of such officer, under and in pursuance of the writ, to have summoned men residing remote from the scene of the alleged murder; which has not been done.
The proof upon the first ground stated has been given under a previous exception. Upon the fourth ground it was proved that one of the jurors summoned lived about half a mile outside of the corporate limits, another about a mile, and four others lived from two to three miles beyond these limits. The court overruled the motion; and the plaintiff again excepted. This is his fourth exception.
On the same 12th of August, and before the jury was sworn for the trial of the cause, the prisoner moved the court for a change of venue, upon the ground that an impartial jury for the trial of the same could not be obtained in the town of Danville. And, thereupon, W. E. Boisseau, the sergeant of the town, being sworn, stated that an unprejudiced jury, or one whose minds had not been made up touching the guilt or innocence of the prisoner, could not, in his opinion, be obtained from the qualified jurors within the corporation of Danville. But the court being of opinion that it was not confined to the corporation of Danville for the selection of jurors, and had the right to send to another county or corporation to obtain jurors for the trial of the cause, overruled the motion; and the prisoner again excepted. This is his fifth exception.
After the calling of the cause, and when the veniremen who had been summoned for its trial were being examined on their voir dire, one of them, J. W. Lee, stated that he was over twenty-one years of age, and that he had been a citizen of Virginia and the county of Pittsylvania for three years, long enough to entitle him to register as a voter therein, but that he had never registered as a voter, nor voted there. Whereupon the prisoner, by counsel, challenged the said J. W. Lee, and asked the court to exclude him from the panel, upon the ground that he was not a qualified voter, and therefore not a legal juror. But the court overruled the motion; and the prisoner again excepted. This is his sixth exception.
After the jury had been sworn and charged by the clerk as to the law touching the indictment, the commonwealth's attorney asked leave of the court to make a statement to the jury touching the several grades of homicide and the law in reference thereto. To this the prisoner, by his counsel, objected, on the ground that it was the office of the clerk, in the trial of felonies; and that any statement made by the attorney, at that stage of the case, would be a partial argument of the cause before the evidence had been adduced, and calculated to prejudice the jurors against the prisoner's case, and thereby endanger the impartiality of the trial. But the court overruled the objection and permitted the commonwealth's attorney to make his statement; and the prisoner again excepted. This is his seventh exception.
The jury found the prisoner guilty of murder in the first degree; and the court thereupon sentenced him to be hung. From this judgment the prisoner obtained a writ of error from a judge of this court.
George C. Cabell, for the prisoner.
The Attorney-General, for the Commonwealth.
OPINION
BOULDIN, J.
The first error assigned in this case is, that the court, after setting aside the verdict of the jury and awarding the prisoner a new trial, should not have again put him on his trial at the same term of the court.
It is not pretended that there is any law requiring, or even authorizing, a continuance of the case, under such circumstances, until the next term of the court, if in the opinion of the court it may be convenient or expedient to try the case at the same term. On the contrary, by the policy of our laws, by which criminal cases are always deemed privileged, and by the provisions of the tenth section of the bill of rights, which guarantees to the accused a speedy trial by jury, it would seem manifest that the court is not only authorized, but that it is its duty to proceed with the trial at the same term, if justified by the state of the docket; and of this the court is the proper and only judge. We are of opinion, therefore, that there was no error in setting down the case for trial at the same term.
The second error assigned is, the refusal of the court to grant the accused a continuance of the cause.
This was asked on two grounds:
The first ground was, that it was unusual to hurry the accused into trial at the term of the court at which there had already been a trial of his cause. This is substantially the question already disposed of under the first assignment of error. There being not even a suggestion that any witness was absent, or that by delay any additional testimony on behalf of the accused could be produced, we think that the reason assigned was no ground for a continuance.
The next ground was, that the accused had called for a copy of the indictment against him and a list of the jurors summoned to try him, which he did not receive until he was set to the bar on the day of the commencement of his trial. We think there was no error in refusing to grant a continuance for this reason. It is certainly true that the law entitles the accused to a copy of the indictment and a list of the persons summoned as jurors to try him, but it prescribes no time in which this shall be furnished. It was in fact furnished in this case before his trial commenced. He needed no time to understand the indictment, for he had already, and at the same term, been tried on that indictment. The list of jurors was placed in his hands before the trial commenced, and the court doubtless did allow him, or if asked would have allowed him, a reasonable time to examine it. Whether that reasonable time should have been one day or less is a question not before us, because no such motion was made to the court below. The motion was, not for this reasonable delay to examine the list, but for a continuance of the cause until the next term; and this court is of opinion that the motion was properly overruled.
The next assignment of error is, to the refusal of the court below to quash the venire facias issued in the cause, and the return thereon.
The first reason assigned for quashing the venire facias is, that it was defective and not issued in accordance with the statute. That in this case, in which jurors were wanted from beyond the limits of the corporation, and beyond the ordinary jurisdiction of the court, they should have been brought or summoned not by venire facias but by order of the court; and to sustain this objection reference is made to Sess. Acts 1871-'2, p. 34, § 10. That act provides that " in a criminal case in any court, if qualified jurors not exempt from serving cannot be conveniently found in the county or corporation in which the trial is to be, the court may cause so many as may be necessary of such jurors to be summoned from any other county or corporation by the sheriff or sergeant thereof, or by its own officer." It will be seen that nothing is said in the act about the form of process by and under which the jurors aforesaid shall be summoned--whether by venire facias or a simple summons. All that the act requires is, that the judge shall cause them to be summoned; leaving it to his discretion entirely how they are to be summoned.
In this case the court entered a formal order in the cause, directing the clerk to issue a venire facias, requiring the sergeant of the corporation to summon from the body of the county of Pittsylvania twenty-four lawfully qualified jurors, & c., & c.; and under this order the clerk issued the very process ordered by the court. The statute required the court to cause the jurors to be summoned. The court did cause them to be summoned by venire facias, and they obeyed the summons. We can see no violation of law in this proceeding. On the contrary, the object of the law is fully and in terms accomplished by it. The fact that the clerk may, and indeed must, without formal order of court, issue writs of venire facias within his county or corporation in proper cases, certainly cannot have the effect of rendering illegal such a writ when issued by the clerk to another county or corporation, under the direct authority and express order of the court, in a proper case for such order.
This court is of opinion that there was no error in the refusal of the court below to quash the venire facias for the reason stated.
Nor did that court err in refusing to quash the return and writ for the reason secondly assigned, viz: that the judge had not given his consent in writing to the appointment of the deputy who executed and returned the writ.
That deputy appeared before the judge of the court during the recess of the court, and took the oath of office, which was in writing, was subscribed by the deputy, and was certified in writing by the judge himself. This was regarded by the judge as a sufficient consent in writing on his part to the appointment of the deputy; and this court concurs in that opinion.
The fourth assignment of error is, that " the court erred in not sustaining the prisoner's challenge to the array of jurors," for reasons set forth in his fourth bill of exceptions.
The first and second reasons assigned in this bill of exceptions have been already disposed of in considering the third assignment of error.
The third reason assigned presents greater difficulty and deserves a more serious consideration. It is that the Corporation court of Danville has no power to summon a jury from beyond the limits of the corporation in a criminal prosecution. The power in a criminal case to summon a jury from beyond the limits of the county or corporation is confined, it is contended, by the amended act of February 11th 1873, Sess. Acts '72-3, chap. 97, p. 80, to the Circuit courts alone. The power referred to prior to that amended act had been conferred on " any court" in a criminal case, and thus clearly embraced Corporation courts. It is true that the tenth section of the Code of 1860, which conferred the power, as amended by the act aforesaid of February 11, 1873, strikes out the words " any court," and refers in terms only to " " " Circuit courts; " but it does not follow as a necessary consequence that such power can only be exercised by those courts. The power and jurisdiction of Corporation courts generally, as at present organized, are nowhere prescribed and defined in detail by separate express legislation. The jurisdiction of these courts has been generally conferred, both in the Constitution of the State and in the Acts of Assembly under that Constitution, by reference to the jurisdiction of other courts, and chiefly of the Circuit courts, without stating in the grant of jurisdiction, otherwise than by reference as aforesaid, what that jurisdiction is, except in some special cases.
Thus the 14th section of the 6th article of the State Constitution provides as follows: " For each city or town in the State containing a population of five thousand, shall be elected on the joint vote of the two houses of the general assembly, one city judge, who shall hold a Corporation or Hustings court of said city or town as often and as many days in each month as may be prescribed by law, with similar jurisdiction which may be given by law to the Circuit courts of this State, " & c., & c. We are thus referred by the Constitution itself to the jurisdiction " which may be given by law to the Circuit courts of the State," for the extent and character of jurisdiction conferred on the Corporation courts; and it would seem from the peculiar terms of the Constitution, that it was the purpose of the framers that whatever jurisdiction might, from time to time, be conferred on the Circuit courts, would, ipso facto, attach to the Corporation courts.
In prescribing and defining the jurisdiction of the Corporation courts under this law, we find that the legislature has pursued the same course. By the act of April 2d, 1870, " entitled an act to prescribe and define the jurisdiction of the County and Corporation courts of this Commonwealth, and the times and places of holding the same," Sess. Acts 1870-71, ch. 38, § 7, p. 36, the jurisdiction of the Corporation courts is prescribed and defined as follows:
" § 7. The several Corporation courts shall, within their respective limits, have the same jurisdiction as the Circuit courts, and the same jurisdiction as County courts, over all offences committed within their limits: provided, that the provisions of this section shall not apply to the courts of the city of Richmond."
And by the act of May 19th, 1870, Sess. Acts 1870-71, ch. 96, p. 117, this section was so amended as to extend the jurisdiction of Corporation courts by the addition of the following words, after the grant to those courts of the criminal jurisdiction of the County courts, viz: " and also jurisdiction in all other cases which were cognizable by the former Husting courts of the respective cities, under the laws as they existed on the 26th day of January, eighteen hundred and seventy."
These are the provisions under which the Corporation courts, except that of the city of Richmond, exercise their general powers and jurisdiction; and it will be seen, as we have already said, that their general jurisdiction is prescribed and defined, not by a separate enumeration of their powers and duties, but by reference to the jurisdiction of other courts. When, therefore, in a criminal case, we wish to ascertain what are the powers and duties of a Corporation court, (other than that of the city of Richmond,) we are referred by the Constitution and the laws to the jurisdiction of the Circuit courts; to the powers and duties of those tribunals in such case; and the same jurisdiction precisely is conferred on the Corporation courts. Jurisdiction is defined by both Bouvier and Burrill as follows: " Jurisdiction is a power constitutionally conferred upon a court, a single judge or a magistrate, to take cognizance of and decide causes according to law, and to carry their sentence into execution; " and by the latter, in a more general sense, " power or right to exercise authority." The power and authority of the Circuit courts of the State in a criminal case--their jurisdiction, extends to and embraces the power and duty of summoning, under circumstances, an impartial and duly qualified jury from beyond the limits of the county or corporation; and this being a most important and valuable safeguard to an impartial trial, as well on the part of the prisoner as of the Commonwealth, we can see no reason in favor of its exercise by a Circuit court which would not apply a fortiori to the Corporation courts when exercising the grave functions of a criminal tribunal. We say a fortiori, because, from the necessarily contracted limits of such corporations, the necessity for the exercise of this wholesome power must more readily and frequently arise in a corporation than in counties.
As the exercise, then, of the power in question is clearly within the jurisdiction of the Circuit courts, and the same jurisdiction is conferred on the Corporation courts; as both courts have in such cases the same power and authority, we do not regard it a dangerous latitude of construction to hold that this grave and important function, although conferred in terms only on the Circuit courts, necessarily follows the jurisdiction of both courts in the cases to which it applies. To hold otherwise would lead to strange results. In the town of Danville, as in other cities and towns of the State, there is both a Circuit and a Hustings court, both having the same criminal jurisdiction and bounded by the same narrow territorial limits; yet, under the rule contended for, the singular anomaly would be presented of one of these courts exercising this wholesome and conservative power, whilst under identically the same circumstances it is denied to the other. We would be reluctant to adopt a conclusion so unreasonable.
We are opinion, therefore, that there was no error in ordering the venire facias to the county of Pittsylvania, and that the challenge to the array of jurors for that cause was properly overruled. Nor do we think that there is any legal validity in the further objection to the array of jurors, that the mandate of the writ was not obeyed by the officer who executed it; in this, that the jurors near to instead of remote from the vicinage were summoned.
The objection is not sustained in point of fact. The nearest juror to the scene of action resided about one-half of a mile beyond the corporate limits of the town of Danville. This is remote from the vicinage. In the eye of the law the entire panel was summoned from places remote from the vicinage. It was summoned from the body of the county of Pittsylvania, and beyond the limits of the corporation; and this, in law, is remote from the vicinage of the alleged crime. The word " remote," as used in the statute, is a relative term. What would be " remote" from the vicinage in a small town like Danville would be near the vicinage in the country, in a sparsely settled county. In a small town of four thousand inhabitants it would rarely, if ever, be practicable to summon a panel from a distance of more than one-half of a mile from the scene of the crime, yet the law implies that within such corporation a qualified jury " " remote" from the vicinage may be secured; and in point of fact such qualified jury was secured in this very case within the limits of the town of Danville on the first trial of the case. We are of opinion therefore that the entire panel having been summoned from the body of the county of Pittsylvania, and beyond the limits of the corporation, was legally summoned.
We are further of opinion, that had one of the panel been summoned by mistake or misapprehension of the law, or otherwise, from a place near to instead of remote from the vicinage, the objection, if valid, instead of being made to the array of jurors, should have been made to the individual juror so summoned. The challenge to the array of jurors was therefore properly overruled.
5. The court is further of opinion that there was no error in the refusal of the court below, on the motion of the prisoner, to change the venue. The fact that a duly qualified jury was promptly and readily obtained from the county of Pittsylvania demonstrates that a change of venue was unnecessary.
6. Nor did the court err in refusing to sustain the prisoner's challenge of J. W. Lee because he was not a qualified voter, and therefore not a juror qualified according to law. The objection to the juror was not that he did not possess the constitutional right to vote, but that he had not been registered, so as to enable him to exercise his contitutional franchise. We do not regard registration as one of the qualifications of a voter, but merely a convenient means of ascertaining who is entitled to vote. It is evidence only of a pre-existing right, which evidence must, under the registration acts, exist at the time of voting. It does not confer, but is merely proof of, the right. The Constitution confers and secures that right in the following terms: " Every male citizen" (not registered male citizen) " of the United States, twenty-one years old, who shall have been a resident of this State twelve months next preceding any election, shall be entitled to vote on all questions," & c., & c., excepting only idiots and lunatics, convicts, and persons who since the adoption of the Constitution may have fought a duel with deadly weapons, sent or accepted a challenge to fight with such weapons, or knowingly conveyed a challenge, or aided or assisted in any manner in fighting a duel. In this list of exceptions non-registered persons are not included. The juror Lee was " " entitled to vote" under the terms of the Constitution; and our opinion is, that the court did not err in overruling the motion to exclude him.
The last error assigned was, that the commonwealth's attorney was allowed by the court to make a statement to the jury before the testimony was introduced, " touching the several grades of homicide and the law in reference thereto."
This statement was made by the permission and under the control of the court, and there is no suggestion even that the law, as actually stated to the jury, was inapplicable, or erroneously or improperly stated; and whilst the practice is unusual we cannot say, thus guarded, that it is erroneous.
On the whole case we are of opinion that there is no error in the judgment of the Corporation court, and that the same be affirmed.
JUDGMENT AFFIRMED.