State v. Bail

Haymond, Judge,

dissenting:

The decision of the majority of this Court in this case in reversing the judgment of the Circuit Court of Clay County, which confirmed the verdict of the jury finding the defendant guilty of murder of the second degree and sentenced the defendant to confinement in the penitentiary of this State for that offense, is based on three alleged errors of the circuit court in the trial of this case. These alleged errors are the action of the circuit court: (1) In causing jurors to be summoned from Brax-ton County for the trial of the defendant instead of selecting a jury from qualified jurors in Clay County for such trial; (2) in giving Instruction No. 6, offered by the State, because it contained the statement “where a homicide is proven by the use of a deadly weapon, such as the case now before you,”; and (3) in giving Instruction No. *711 13, offered by the State, which related to peaceful picketing. In my opinion none of these alleged errors, considered singly or collectively, justifies the reversal of the judgment of the circuit court and in consequence I dissent from the action of the majority in reversing that judgment and awarding the defendant a new trial.

To support its action with respect to the first alleged error the majority cites and relies upon the decision of this Court in State ex rel. Cosner v. See, 129 W. Va. 722 , 42 S. E. 2d 31 . In that case, a proceeding in prohibition, this Court held that Section 20, Article 1, Chapter 52, Code, 1931, which authorizes any court, or the judge of such court in vacation, under certain specified conditions, to cause jurors to be summoned from another county for the trial of a defendant in a criminal case, requires the defendant to be tried in and by a qualified jury of the county in which the offense is alleged to have been committed, unless it clearly appears that such jury can not be found in that county; that in that event the court may cause to be summoned as many qualified jurors as may be necessary from some other county; and that unless it clearly appears that a qualified jury can not be obtained, at the time of trial, in the county in which the offense is alleged to have been committed, for the trial of the defendant in a criminal prosecution in that county, the court in which the prosecution is pending exceeds its legitimate powers under the statute in causing jurors to be summoned from another county for the trial of the defendant. In that case it did not clearly appear that a qualified jury could not be obtained in Mineral County, where the alleged offense occurred, for the trial of the defendant. On the contrary the facts disclosed by the record showed that a qualified jury from Mineral County could have been selected and for that reason this Court prohibited the circuit court of that county from obtaining a jury from another county for the trial of the defendant for an offense alleged to have been committed in Mineral County.

The facts established by the record in the Cosner case are entirely different from the facts established by the *712 record in the case at bar as to the likelihood of obtaining a qualified jury from jurors in the county in which the alleged offense was committed and render the holding of the Cosner case that the defendant in that case should not be tried by a jury from a county other than the county in which the alleged offense was committed inapplicable in the instant proceeding.

In the Cosner case no industrial or labor dispute, which divided and embittered a large number of citizens available for jury duty, existed in the county in which the alleged offense was committed. In the instant case it appears beyond question that a violent and prolonged industrial and labor dispute, which has divided and embittered great numbers of the citizens of Clay County available for jury duty, existed for many months before the trial of the defendant.

In the Cosner case it further appeared that when the trial of the case began eight jurors were accepted as qualified from the thirty eight jurors present in court of the original venire of forty eight jurors; that the judge of the trial court, without suggestion or request from the State or the defendant, at that time expressed the belief that a qualified jury could not be conveniently found in the county and that he should call a jury from another county; that both the prosecuting attorney and the attorney for the defendant urged the court to call fifty additional jurors; that the court refused to do this but, after some hesitation, caused forty more jurors to be summoned; that twenty eight of those jurors appeared during the afternoon session of the court and from that number two qualified jurors were obtained; that with ten jurors accepted as qualified the trial court expressed the view that no more jurors should be called from Mineral County and that a jury should be summoned from another county; that the attorney for the defendant and the prosecuting attorney requested the court to call fifty additional jurors from Mineral County; that the court denied this request but instead directed the clerk to call forty additional jurors to report the following day; that at that time thirty of those additional jurors were present and from *713 that number nine more qualified jurors were accepted which made a total of nineteen qualified jurors who had been accepted subject to examination and challenge by the prosecuting attorney and the attorney for the defendant; that at that stage of the proceeding the court expressed its intention to summon a jury from another county and refused the request of counsel for the defendant that ten more jurors be called for the purpose of obtaining the one additional juror necessary to complete the panel of twenty jurors. It further appeared that only ninety six jurors had been examined and only one hundred and twenty eight of the five hundred and thirteen persons whose names appeared on the current list of available jurors of the county had been summoned; that three hundred and eighty five persons remained on the jury list who had not been called or examined as jurors; and that from a population of approximately 21,000 persons in Mineral County there were at least 2,000 additional available jurors. Although only one additional qualified juror was required to complete the panel of twenty, and although many apparently qualified jurors from Mineral County were available, the trial court in the Cosner case caused a venire of forty eight jurors from Tucker County to be summoned for the trial of the case and, under the foregoing facts, this Court issued a writ which prohibited the judge of the trial court from obtaining a jury from Tucker County for the trial of the defendant in Mineral County.

In the case at bar, as indicated by the facts recited in the majority opinion and as disclosed by the plea in abatement of the defendant, by the verified answer to the plea, which was filed and considered as an affidavit of the prosecuting attorney of Clay County, by the report of the grand jury which attended the February Term, 1953, of the Circuit Court of Clay County, which was also filed, and by the stipulation filed by the parties, all of which are a part of the record in this case, a completely different situation existed in Clay County at the time of the trial of the defendant at the special term of the circuit court which began on July 27, 1953, and at which the defendant *714 was convicted and sentenced, from the situation which existed in Mineral County at the time the jury was summoned from another county for the trial of the defendant in the Cosner case.

The record in the case at bar shows that at the special term of the circuit court at which the defendant was tried in July, 1953, the population of Clay County was 14,961; that the voting population of that county was 7,228; that there were 3,767 men eligible for jury service in that county; that 110 jurors were summoned for the Regular June Term, 1953, of the circuit court; that the regular jury commissioners of that court in August, 1952, caused a list of 200 names of eligible jurors, and in June, 1953, an additional list of 100 eligible jurors, to be placed in the jury box; that at the time the jurors from Brax-ton County were summoned there remained in the jury box the names of fifty inhabitants of Clay County eligible for jury service; that no effort was made to determine whether those persons could qualify as jurors for the trial of the defendant or to obtain other inhabitants of Clay County for service as jurors in the trial of the case; that the offense with which the defendant was charged grew out of a strike; that the striking employees formed and maintained picket lines at certain points; that hostile feelings existed between the strikers and other employees; that a large number of strikers assembled where picket lines were formed especially at Widen Hill; that a great number of offenses were committed by one or the other of these groups; that the result of such activities created a “quasi state of feud”; that much publicity was given to existing conditions; that the general feeling throughout the county was a feeling of hostility or of sympathy toward the cause of the strikers; that at the June Term, 1953, of the Circuit Court of Clay County, Virgil Nelson and other persons were indicted by a grand jury for offenses arising from the strike; that difficulty was experienced in obtaining a panel of twenty qualified jurors from the venire called for the June Term; that after a panel of twenty jurors was obtained to try Nelson it was the general feeling of experienced counsel representing *715 the State that the members of the jury were divided in their emotions and opinions concerning the issue to be tried; that a “hung jury” resulted in the Nelson trial; that later the court attempted to empanel a jury for the trial of Jack Lanham for an offense growing out of the strike; and that the entire venire attending the court was exhausted without obtaining a panel of twenty qualified jurors.

The foregoing facts are not disputed and the defendant, though given the opportunity to do so, offered no proof to controvert the statements in the answer which was treated as an affidavit of the prosecuting attorney. These facts indicate clearly that in July, 1953, a qualified jury could not have been obtained in Clay County for the trial of the defendant and that the action of the circuit court in summoning jurors from Braxton County was entirely proper and was fully authorized by the provisions of Section 20, Article 1, Chapter 52, Code, 1931. It is difficult to see how any action which might have been taken by the trial court could have resulted in the selection of a qualified jury from persons residing in that county who were eligible to serve as jurors in the case.

The vital difference between the Cosner case and this case on that point is that in the Cosner case it clearly appeared from the record that a qualified jury from Mineral County could readily have been obtained for the trial of the defendant and that in this case it clearly appears from the record that a qualified jury from Clay County could not have been obtained for the trial of the defendant.

The holding of the majority in this case, which denies the authority of the Circuit Court of Clay County, in the recited facts and circumstances existing in that county at the time of the trial, will inevitably result in protracted, or indeed interminable, delay in the selection of a qualified jury in that county. Until a qualified jury in Clay County is selected, or such a jury can not be obtained, which must clearly appear before a jury may be summoned from another county, the defendant can not be tried for the grievous offense for which he has been in- *716 dieted. The defendant is entitled to a speedy trial and it is the duty of the State to prosecute the case to its conclusion without undue delay. Justice delayed is justice denied. The unwarranted holding of the majority that it does not clearly appear that a qualified jury can not be obtained from persons eligible for jury service in Clay County, which is contrary to the undisputed facts established by the record and recited in the majority opinion, renders the trial of the defendant by a qualified and impartial jury composed of persons residing in Clay County eligible for such service a present practical impossibility. Such a situation is wholly unnecessary and utterly intolerable and with the decision which creates it I can not agree.

The majority opinion furnishes no practical guide to the circuit court in selecting a qualified jury in Clay County for the trial of the defendant. It does not state definitely whether the circuit court, in an effort to select a qualified jury, by summoning successive venires, is required to determine the qualifications of all or a substantial number of the prospective jurors included in the lists already prepared by the jury commissioners, only fifty of which had apparently not been examined at the time the Lanham case was called for trial, or whether, if that endeavor fails to obtain a qualified jury, the circuit court is required to determine the qualifications of a substantial number of the hundreds of residents of Clay County who are or may be eligible to serve as jurors for the trial of the defendant, before the court may summon a jury from another county. Either of the foregoing efforts would manifestly consume much time and would be utterly futile. Though the majority indicates that it is not necessary that a trial court order the drawing of every available juror or of any percentage of available jurors of a county before directing the empanelling of a jury from another county, it declines to formulate any definite rule for the guidance of the circuit court in the presently existing difficult situation in Clay County. The majority does, however, intimate, by quoting from the Kentucky case of Fannon v. Commonwealth, 295 Ky. 817 , *717 175 S. W. 2d 531 , that the trial court should make some attempt or test, by the examination of prospective jurors, before summoning jurors from another county but the nature and the extent of the effort required are not indicated. As previously mentioned, the circuit court did exhaust one venire of local jurors in an unsuccessful effort to obtain a jury for the trial of Jack Lanham who was indicted for an offense growing out of the strike, but a similar effort in connection with the trial of the defendant would doubtless be deemed insufficient by the majority of this Court.

Whether the circuit court is required to examine fifty jurors, one hundred jurors, three hundred jurors, or an indefinite additional number of the 3,767 persons in Clay County who are eligible for jury service, in an unsuccessful effort to obtain a qualified jury from that county for the trial of the defendant before summoning jurors from another county for that purpose is left to sheer speculation. Though the majority concedes that the determination of the question of the propriety of causing jurors to be summoned from another county is within the discretion of the trial court, its present holding is that the circuit court abused its discretion in summoning a jury from Braxton County; and the effect of that holding is that the circuit court is placed in an unnecessary and intolerable position of doubt and uncertainty.

If the circuit court, before summoning a jury from another county for the trial of the defendant, must examine all of the prospective jurors on the lists already prepared by the jury commissioners and, in addition, a large number of several hundred other residents of Clay County who are eligible to serve as jurors, in an effort to obtain a qualified jury from that county, it is most unlikely that the defendant will ever be tried before a qualified and impartial jury selected from that county for the offense for which he has been indicted and of which he was convicted by competent evidence which established his guilt beyond all reasonable doubt and which the majority concedes sufficiently supports the verdict of guilty returned by the jury.

*718 As to the second alleged error it is difficult to comprehend how the phrase “where a homicide is proven by the use of a deadly weapon, such as the case now before you,” contained in Instruction No. 6 given by the trial court at the instance of the State could have prejudiced the defendant. That some person shot and killed Frame and in consequence that a homicide was committed is a clearly established fact and the quoted phrase in the instruction merely recites or refers to a conceded actuality. By no stretch of the imagination can it be contended or assumed that the quoted words complained of expressly or by implication imparted any suggestion to the jury that the defendant committed the homicide. Whether he did or did not fire the shot which caused the death of Frame was one of the controlling controverted issues in the case with respect to which much evidence was introduced by the State to show that he did fire the fatal shot and much evidence was introduced in behalf of the defendant to show that the bullet which killed Frame did not come from the rifle used by him but instead came from a weapon used by some other unknown person. The words, “such as the case now before you,” merely referred to the admitted fact that Frame was killed by a shot which came from a deadly weapon and do not in any way indicate to the jury that it came from the rifle used by the defendant and could not possibly have misled or confused the jury on the disputed question of the identity of the person who fired the fatal shot. The quoted phrase in the instruction, as well as the other statements in the instruction, are based upon the evidence, the instruction in its entirety correctly propounded the law, and the action of the trial court in giving it was in all respects correct and proper. The statement complained of in the instruction bears no actual resemblance to the statement in an instruction given in State v. Aliff, 122 W. Va. 16 , 7 S. E. 2d 27 , cited in the majority opinion, “where the State has established a prima facia case.”, which this Court condemned as erroneous in that case. The quoted statement in the instruction in the Aliff case clearly indicated to the jury that *719 the State had established a prima facia case of guilt against the defendant, and of course that statement in the instruction was error. As already pointed out, however, the quoted portion of the instruction complained of in this case does not suggest that the defendant committed the homicide but merely recites the conceded fact that a homicide had been committed without any indication that it was committed by the defendant. A reversal of the judgment on the ground that the quoted statement in the instruction misled the jury is, in my judgment, wholly unjustified.

Instruction No. 13, offered by the State, the giving of which by the trial court constitutes the basis of the third alleged error, is quoted in full in the majority opinion and, as reference to the instruction shows, it merely defines “peaceful picketing” and is based upon the evidence. Though the instruction is somewhat abstract in form it correctly defines peaceful picketing. In my judgment it does not relate to or adversely affect the defendant’s theory of self-defense which was fully covered, as the majority concedes, by other instructions in the case. The majority also concedes that the instruction was not intended to affect that theory of the defense. Though the instruction could well have been omitted, the action of the trial court in giving it, in my judgment, did not constitute prejudicial error. To reverse the judgment on that ground is, in my opinion, highly technical and utterly unwarranted.

It is clear to me that the defendant had a fair trial which was free from any prejudicial error. The evidence shows beyond all reasonable doubt that the defendant is guilty of the offense of which he was convicted by the verdict of the jury. For these reasons I would affirm the judgment of the circuit court.

I am authorized to state that Judge Browning concurs in the views expressed in this dissent.