Crump v. Commonwealth , 98 Va. 833 ( 1895 )

Riely, J.,

delivered the opinion of the court.

It is objected that the record does not show that the jury was duly sworn. It recites that the jurors “were sworn the truth of and upon the premises to speak.’’ In Brown v. Corn., 86 Va. 466, this was held to be sufficient, the presumption being that the oath was in due form. See, also, 3 Rob. Prac. 177, and Com. v. Stephen, 4 Leigh, 619. The prisoner, by counsel, entered a general demurrer to the indictment, which the court overruled; and it is objected that the record does not show that there was a joinder in the demurrer. This is not an available error here. Miller v. McLuer, Gilmer, 338.

It is next objected that the court instructed the jury orally as to what constitutes the offence of rape, instead of in writing. Even if it were error for the court to fail to reduce its instruction to wilting, it does not appear that the prisoner excepted on this ground, or that he excepted at all to the instruction, or what the court instructed. It is a common practice of the trial courts to instruct the jury orally as to the law of the case, and, unless objected to at the time for some good reason, it is not error to do so. Booth’s Case, 4 Gratt. 525.

It is further objected that the record does not show that the indictment was signed by the foreman of the grand jury. This was unnecessary, and it has been so held by this court. Price’s Case, 21 Gratt. 846, and White’s Case, 29 Gratt. 824.

It is also assigned as error that the verdict was not signed by the foreman of the jury, or rendered in open court. It was received by the court, and recorded by the clerk. It was unnecessary that it be also signed. Wood’s Case, 86 Va. 934. It is plain from the record that it was rendered in open court. Immediately upon its being rendered, the prisoner, by his counsel, moved the court to set it aside, and grant him a new trial. This objection is without merit, as is also the objection to the form of the verdict.

Exception was also taken to the refusal of the court to instruct the jury “that the character of the accused, good or bad, when proved, may always be received and weighed by them in favor of or against him, as the case may be,” and in giving, in lieu thereof, the following instruction: “ That the character of a prisoner, when proven, whether good or bad, is a fact to be considered by the jury, but its weight as affecting the guilt or innocence of a, prisoner is a matter for the determination of the jury, in connection with the other facts proven in the case.” The instruction, as amended, correctly stated the law, and was properly given to the jury. We do not mean to say that the instruction as asked for was not correct. It was in the words of the instruction given in Briggs’ Case, 82 Va. 554, and approved by this court; but the amended instruction given by the court in this case wholly covered it, and was so expressed as to prevent the jury from being misled, which was possible in the form in which it was asked.

The court was also asked to give the following instruction: “ That accusations of this sort are easily made, hard to be proved, and still harder to be defended by one ever so innocent”; which it refused to do, upon the ground that the instruction was rather a statement of the conclusion of the judicial mind from experience in the trial of this class of offences than an enunciation of a principle of law, and, besides, that, as an instruction in this case, it was irrelevant and without application; but, while refusing it as an instruction, the court added that it would allow the counsel for the prisoner to make to the jury the statement embodied in the instruction. The reasons given by the court for its refusal to give the instruction are a sufficient answer to this bill of exceptions. The oft-repeated observation of Lord Hale, which it was here attempted to put in the form of an instruction, was entirely proper by way of argument to the jury, but not as an independent instruction.

The last assignment of error relates to the refusal of the court to set aside the verdict, because contrary to the law and the evidence, and award the prisoner a new trial. The evidence is not of a nature to be discussed. It must suffice to say that we have carefully read and considered it, and that it fully justifies the verdict.

There is no error in the judgment of the Hustings Court, and it is therefore affirmed.

Affirmed.