Pitchford v. Commonwealth , 135 Va. 654 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

In the view we take of the case the chief question presented by the assignments of error for our determination is the following:

1. Can we say that it appears from the record before us that the accused was not tried by an impartial jury?'

The question must be answered in the affirmative.

(a). It is true that it has been repeatedly held, by this court, in general terms, that a new trial will not be granted in a criminal case for matter which is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, although it was unknown to the accused till after the verdict and could not have been discovered before the jury were sworn by the exercise of reasonable diligence, unless it appear that the accused suffered injustice from the fact that such juror served upon the case. Smith’s Case, 2 Va. Cas. (4 Va.) 6; Poore’s Case, 2 Va. Cas. (4 Va.) 474; Kennedy’s Case,, 2 Va. Cas. (4 Va.) 510; Brown’s Case, 2 Va. Cas. (4 Va.) 516; Hughes’ Case, 5 Rand. (26 Va.) 655; Jones’ Case, 1 Leigh (28 Va.) 598; Heath’s Case, 1 Rob. (40 Va.) 735; Hailstock’s Case, 2 Gratt. (43 Va.) 564; Curran’s Case, 7 Gratt. (48 Va.) 619; Thompson’s Case, 8 Gratt. (49 Va.) 637; Bristow’s Case, 15 Gratt. (56 Va.) 634; Gray’s Case, 92 Va. 772, 22 S. E. 858.

It is true also that it has been held by this court (at. least where the testimony is oral and is heard ore tenus by the trial judge), that, where there is a conflict of testimony as to the language and conduct of jurors on which the exception to the jury is founded, it properly belongs exclusively to the judge who presided at the trial to weigh and decide upon the credibility of the opposing statements of the witnesses and jurors and to determine whether, in justice to the accused, and upon all the circumstances of the case a new trial ought or ought not to be awarded. Heath’s Case, supra 1 Rob. (40 Va.) 735, 742; Dilworth’s Case, 12 Gratt. (53 Va.) 689, 698-700, 65 Am. Dec. 264.

But in the instant case it appears from the testimony •of Rogers and of Nanny himself, in substance and without conflict in this particular between their testimony, that, prior to the trial and only two days before it, Nanny had used language which he did not claim that he had forgotten at the time he was chosen as a juror, which showed unequivocally that he had prejudged in his own mind and had a fixed opinion on the pivotal •question of fact in the case adverse to the accused, without regard to the evidence which might be introduced on the trial, namely, that he had prior to the trial a fixed opinion that the accused did not shoot in self-defense, but after the assault upon him had ended, and that he ought to be punished. By his own admission, in substance, that he had expressed himself to the effect just stated, without claiming that he had at any time forgotten that he had so expressed himself, Nanny nullified his general statement that he had.not formed any opinion before the trial. The two statements are so diametrically opposed that they cannot stand together. And his statement that his decision was based on the evidence in the case amounts to nothing as tending to show that he was unbiased; since, having a fixed opinion when he went upon the jury that the shooting was not in self-defence, he naturally believed the witnesses for the Commonwealth who testified to that effect and disbelieved the accused and his witnesses who testified to the contrary, and, hence, could readily say, as he did, that his decision was based on the evidence.

As the case is one in which the fact that the juror did not stand indifferent when he entered upon the discharge of his duty and served as juror, but was biased against the accused to the extent of the fixed opinion in the material particulars aforesaid; and as this fact is not involved in any conflict of testimony such as to make the decision of its existence one to be exclusively •determined by the trial judge, we must consider it as an •established fact in the case.

That being true, we are of opinion that it appears from the record before us that the accused suffered injustice from the fact that such juror served upon the case. State v. Greer, 22 W. Va. 800, 824.

In State v. Greer all of the Virginia cases are cited which we have cited above, except the last and third from the last cited by us, and the holding of such cases in general terms above mentioned is referred to. The opinion of the West Virginia court also cites McDonald’s Case, 9 W. Va. 456; and thereupon proceeds as follows:

“What is meant by the following language used by the courts in Virginia.and in this State: ‘Unless it appears that the prisoner suffered injustice from the fact that such juror served upon the ease?’ It certainly cannot mean that, in order to ascertain whether the prisoner has suffered injustice, the court is to look into the evidence against the prisoner on the issue tried in the case, because it would be impossible to ascertain, in that way, whether he had suffered injustice. The plain meaning of the language is, that the trial court, upon a motion for a new trial on such ground, will look into the affidavits or other evidence offered to sustain the motion, and from them determine whether the juror, who had before the trial expressed his opinion as to the guilt of the accused, had merely expressed such opinion from a partial knowledge of the case, and whose mind was unbiased so that he could impartially try the accused upon the charge, or whether he had prejudiced the case and was determined to find him guilty without regard to •evidence; and if from such affidavits or other evidence it appeared on the motion for a new trial that a juror had prejudged the case and had not merely expressed an opinion which might be changed by evidence, it. would be assumed that the prisoner was injured, and it. would be the duty of the court to set aside the verdict and grant a new trial in the case. And if a motion in such case was overruled, the appellate court would, on. writ of error for that cause, reverse the judgment and set aside the verdict and grant a new trial. If it appeared from the affidavits and other evidence, to the sat- • isfaction of the court, that the expressions of opinion were such that the juror might readily have forgotten,. then the court would regard it as a mere opinion and not. a prejudgment and that, when the juror on his voir dire de- • dared he had expressed no opinion as to the guilt or in- • nocence of the accused, he did not swear falsely, but had forgotten that he had expressed such opinion; but if, on: the other hand, it appeared that decided opinions had. been expressed by him as to the guilt of the accused so-recently and so decidedly as to convince the court that,, for the purpose of being a member of the jury, he denied on oath that he had expressed any opinion as to the-guilt of the accused, then it is clear that he had prejudged the case; and of course the prisoner was injured, by his being on the jury.”

We think that the holding just quoted is sound and that the service of the juror, Nanny, upon the jury in the-instant case falls within the condemnation thereof.. Moreover:

(b). In view of the fact that refreshment was-furnished a portion of the jury at the expense of E. S.. Abernathy, a first cousin of the widow of the deceased and hostile to the accused, and actively participating in-his prosecution, the verdict cannot stand. Also the acceptance by the juror, Nanny, of the invitation from W.. S. Abernathy, a person hostile to the accused (although its consummation was thwarted by the order of the trial! judge on motion of counsel for the accused), amounted in its influence, for all practical purposes, to the same thing as if the entertainment of Nanny by W. S. Abernathy had actually occurred.

As said in New River, etc., R. Co. v. Honaker, 119 Va. 641, at p. 654, 89 S. E. 960, at p. 964 (Ann. Cas. 1917C, 132): “The almost uniform holding of the decisions of all the States and in England is that a verdict rendered by a jury any of whose members has been treated by one having an interest in the case, his agent or attorney, must be set aside, and in nearly all cases the rule is applied without regard to its actual influence on the verdict. The reason for the rule being one of public policy, requiring juries to be kept out of such á position that their verdict may be the subject of suspicion of being influenced by any party to the litigation, whether such influence was in fact sought to be exerted or not, or in fact existed.”

See authorities cited 119 Va. at p. 654, 89 S. E. at p. 964 (Ann. Cas. 1917C, 132); also 12 Am. & Eng. Enc. of Law (1st ed.) p. 372 and note 3; 21 Viner’s Abridgements, p. 448; Ensign v. Harney, 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Rainey v. States, 100 Ga. 82, 27 S. E. 709; Mann v. State, 47 Tex. Cr. R. 250, 83 S. W. 195; Va. Western Power Co. v. Kessinger, 122 Va. 135, 94 S. E. 186.

In the head note to Rainy v. State, prepared by the chief justice of the Georgia court, this is said: “Where, during the trial of a criminal case, the jury dispersed and one of them was entertained at dinner free of charge by an attorney for the State, such conduct on the part of the latter is cause for a new trial, although the counsel for the accused knew of the same before the verdict had been returned. In such case the trial court should not, nd this court will not, inquire whether injury resulted to the accused or not, but the verdict, upon principles of sound public policy, will be set aside, to the end that the purity of jury trial may be preserved unimpaired.”

In Mann v. State (a misdemeanor case), as per head note, this is held: “Where it was shown that the prosecutor accompanied one of the jurors home and took dinner with him * * * the judgment of conviction will be reversed.”

This same principle, which' is applied in civil cases upon the subject under consideration and in criminal eases, where the prosecuting attorney or the prosecutor does the entertaining, is applicable in criminal cases where the person doing the entertaining is hostile to the accused for any reason. ■ Whether the person doing the entertaining is a party to the cause or not a party; whether his interest is or is not pecuniary, is wholly immaterial. If he .has, from any motive whatsoever, the desire that the verdict should be as it is returned and he has entertained the jury, or any member of it, for reasons of public policy, the verdict is invalidated. As said in some of the authorities, it is of more importance that the community should feel assured of .the purity of the trial by jury than that a particular person should be convicted, even if guilty.

In Thompson’s Case, 8 Gratt. (49 Va.) 637, it is held that the casual entertainment of the jury by a medical witness for the Commonwealth by treating them to drinks, when he was accidentally present with them at the bar of the hotel where they were brought in the custody of the officers, was not sufficient ground to set aside the verdict. But on this subject the court, at page 660 of 8 Gratt. (49 Va.), said this: “The only remaining question is whether the well intended but thoughtless and ill timed act of civility and hospitality on the part of the Commonwealth’s witness, Dr. Waring, in treating the jury * '* (in the presence of the ■officers who had them in charge, be it remembered) shall vitiate this verdict. That the act was mere inadvertence, and the intent innocent, cannot be questioned, from aught that appears in this record to the contrary. His being there was purely accidental, as appears from the deposition of the deputy sheriff. He went upon his invitation. He had no interest in the cause, and no connection with it, except as a professional witness for the Commonwealth. It does, not appear that he was hostile to the prisoner, or even knew him, or desired his conviction; it does not appear that there was the least question as to his credibility; but the contrary is fairly inferable from the record. That it was an irregularity is not denied, in the witness, the jurors and the officers permitting it; but one which, though brought to the attention of the court who presided over the trial, so far as appears from the record, passed without its animadversion, doubtless because of the absence of intention on the part of all concerned to commit any breach of duty or propriety. It cannot reasonably be presumed or suspected that any injury to the prisoner resulted from the inadvertence.” (Italics supplied.)

And further:

(c). As a private communication between a witness for the Commonwealth with a member of the jury during the trial of the case was established by the evidence introduced upon the motion for a new trial, without conflict in such evidence, and the harmlessness of such communication is not made or even sought to be' made to appear by any evidence in the record, the verdict can not stand. Beale’s Cr. Pl. & Pr., sec. 231; Mattox v. United States, 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917.

In Beale’s Cr. Pl. & Pr., supra (sec. 251), this is said: “Private communications' possibly prejudicial between jurors and third persons or witnesses * * * are absolutely forbidden, and invalidate the verdict, unless, their harmlessness is made to appear.” This is the precise language of the opinion of the Supreme Court in the case of Mattox v. United States, supra (146 U. S. 140, at page 150, 13 Sup. Ct. 50, at page 53, 36 L. Ed. 917, at page 921).

No question of waiver by the accused, prior to the verdict,, of objection to the jury on any of the grounds above mentioned is presented in the ease. Therefore, for the reason above stated, we feel constrained to reverse the case and grant a new trial.

The conclusion just stated renders it unnecessary for us to pass upon any other of the assignments of error, except those which involve questions which are likely to arise upon a new trial. There are such assignments, which concern the action of the trial court in refusing to strike from the evidence “the testimony of all witnesses for the Commonwealth to the effect that the deceased, before striking the prisoner, said the accused had struck Tommie Roberts, and all testimony of the defendant’s witnesses in which that statement was made,” as set forth in bill of exceptions No. 5; and that the court erred in giving and in refusing to give certain instructions as set forth in the bills of exceptions relating thereto. •

2. On the subject of the evidence mentioned, we deem it sufficient to say that this evidence merely disclosed a declaration of the deceased which accompanied his assault upon the accused. It was made just as the deceased took and while he still had hold of the accused. It was a part of the res gestae and hence could not be properly excluded from the evidence.

3. On the subject of the action of the court in giving and refusing instructions, we will say that we find no error in the action of the court, unless it consisted in giving instruction No. 4, on motion of the Commonwealth, and instruction “E,” which was given on motion of the accused on the first trial, but was offered with the request that it be amended in a material particular on the second trial. Neither of these instructions involves any novel question, hence we do not set them out here. We deem it sufficient to say that, if the evidence upon a new trial should be substantially the same and the instructions given on the aforesaid second trial are all again offered, they will be proper instructions to be given, with the exception of said instructions No. 4 and “E.” Instruction No. 4 should, in such •case, not be given, as it is so abstract in much of its phraseology as to be more likely to mislead than to be helpful to the jury; it covers the same ground that instruction 5 covers in a more concrete way; save the statement of the punishment prescribed by law for involuntary manslaughter, and that subject would be better covered by the charge of the clerk or by a separate instruction. Instruction “E” should, in such •case, be modified and given in the following form:

“E. If the jury should believe from the evidence that the accused shot the deceased under a reasonable belief that his own life was in danger, or that he was in danger ■of serious bodily harm, as the facts and circumstances .reasonably appeared to him at the time, he was'excusable in so doing, though such danger was unreal. The question for the jury in this case is not whether the taking of the life of the deceased might have been safely avoided, but whether the accused, in the circumstances -of agitation and peril in which he was placed, as reasonably appeared to him (if the jury believe that he was in such circumstances), might reasonably have believed and did believe it necessary to shoot as he did, resulting in the death of the assailant, in order to save his own life or avoid serious bodily harm.”

If instruction “E” is given in the form just stated, that will take the place of instruction “F,” which was given on the second trial, and in such case instruction “F” should not be given, as it would tend to over-emphasize the subject dealt with by instruction “E.”

Reversed and remanded for a new trial.