766 *Poindexter v. The Commonwealth.*
January Term, 1880, Richmond.
1. Venire Facían — Sufficiency.! — Upon an indictment of P for the murder of
C, before the jury is called the prisoner moves the court to quash the venire
facias, and return thereon, for errors and irregularities appearing thereon;
the only ground
the
NoTE FitoM Official Addition. — This and next two cases should have appeared
in 32 Gratt.
tCrlmlnal Lai* — Venire Facían— Reiuote- пеяя. — The ruling of the court in
the principal case as to the sufficiency of the writ is cited with approval in
fiaccigalupo v. The Commonwealth, 33 Gratt. 807; Albert Mitchell v. The
Commonwealth, 33 Gratt. 845. See also Whitehead v. The Commonwealth, 19 Gratt.
640.
Failure to comply with the statute requiring the jurors to be summoned "remote
from the place where fhe offence is charged to have been committed," has been
held fatal error. Whitehead v. Comm-, 19 Gratt. 640.
In Lawrence v. Comm., 81 Ya. 484, the word "remote" was held to a relative
term depending on the density of the population of the particular locality.
In Craft v. Comm., 24 Gratt. 602, all parts of the county outside of the
corporate limits were held remote.
of error is that the act requires the jurors to be summoned, &c., "remote from
the place where the offence is charged to hare been committed;" and the
language of the venire facias is—"where the felony u'as committed." Held: This
was no error.
2. Same—Same.—A jury not having been obtained from the twenty-four persons
summoned under the first rentre facias, a tales is issued directing the
persons named by the judge to be summoned—"who reside remote from the place
where the felony was committed.'1 Held: The introduction of these words into
the tales, if not required by t>-e statute, is in accordance with the policy
of the law, and does not invalidate the venire. And in a reñiré facias sent to
a distant city, the insertion of these words is immaterial.
3. Evidence—Adml»lbillty.—After the Commonwealth had introduced evidence of
the affray at the factory of Childrey, which occurred between 11 and 12
o'clock, where С had come to see P, the Commonwealth asked the witness whether
he had any conversation on that morning with P concerning any difficulty
between himself and deceased, occurring that morning, and if so, what was it?
To which question and answer thereto, the prisoner objected. And the attorney
for the Commonwealth announced that he intended to follow the question up by
evidence that the prisoner had conspired with another on the morning of the
homicide to whip the deceased. The court overruled the objection,
and the witness stated what the prisoner told 767 him of a difficulty he had
'had with C, and that he had whipped him. Held: It was competent evidence.
4. Same—Same.—It having been proved that С had come to the factory of Childrey
between 11 and 12 o'clock, and demanded an apology from P, which P refused to
give, and thereupon С had attacked P with a cane, and P had shot him, the
Commonwealth offered evidence to prove the particulars of an assault made by
the prisoner on the deceased at the store of Wingo & Co., where С was
employed, between 9 and 10 o'clock of the same day of the homicide at
Childrey's, in which the accused beat the deceased. Held: The occurrences were
so connected that the evidence of what occurred at the store of Wingo & Co.
was competent.
5. Trial—Juror*—Objection» after Verdict.t —The objection to a juror that he
was not a com-
tSame—Jnror»—Competency—Objection.
—Under Code 1873, ch. 158, 20. objection to juror for disability created by
the constitution, comes too late after verdict. Puryear v. The Commonwealth,
83 Va. 51, citing principal case; Ilite v. Commonwealth, 96 Va. 495; Simmons &
Winch,v. McConnell, 86 Va. 494. Nor can objection be made after the juror is
sworn, unless by leave of court Spurgeon V. The Commonwealth, 86 Va. 652.
See generally on this question 4 Min. Inst. (2nd Ed.) 738; 12 Ene. of PI. &
Рг. 437; Code of 1887, H 3155, 4048; Tooel v. The Commonwealth, II Leigh 714;
Thompson v. The Commonwealth, 8 Gratt. 637; Dilworth v. The Commonwealth, 12
Gratt. 689; Bris- tow v. The Commonwealth, 15 Gratt 634; Reynolds v. Richmond,
etc., Ry. Co., 92 Va. 400; Gray v. The Commonwealth, 92 Va. 772; Hendrick v.
Comm., 5 Leigh 707; Montague v. Comm., 10 Gratt. 767.
Same — Mnrder — Ргол*осаНоп — Instruction.—In Honesty v. The Commonwealth, 81
Va. 296; it was held not error to give an instruction to the jury that "to
render provocation a defence to
petent juror, because he had not paid his capitation tax oí the previous year,
comes too late after a verdict of conviction in a criminal trial ; and is not
good ground for setting aside t^e verdict, and granting a new trial to the
prisoner. в. Ca>e at Bar.—Upon the facts in this case the prisoner was
properly convicted of voluntary manslaughter.
At the March term, 1879, of the hustings court of the city of Richmond, John
E. Poindexter was indicted for the murder of Charles C. Curtis. He was tried
in May and the jury found him guilty of voluntary manslaughter, and fixed the
term of his imprisonment in the penitentiary at two years; and the court
sentenced him accordingly. And thereupon the prisoner applied to this court
for a writ of error and supersedeas; which was allowed.
In the progress of the trial the prisoner took a number of exceptions to
rulings of the court; all of which are set out in the opinion of the court
delivered by Judge Moncure.
Wm. L. Royall and John B. Young, for the prisoner.
The Attorney-General, for the Commonwealth.
788 »MONCURE, P.. delivered the opinion of the court.
This case has been argued with great ability by the counsel on both sides. We
listened to the argument very attentively and anxiously, have considered it
very maturely, and have agreed in an opinion in the case; which opinion we
will now proceed to deliver. We will dispose of the several assignments of
error in the order in which they are made in the petition for a writ of error
in the case:
1. The first assignment of error is: that the hustings court erred in
overruling the
ñire facias, issued on the trial of the case, which constitute the subjects of
his first, second and third bills of exceptions referred to in the said
petition.
In the first bill of exceptions, it is stated that on the trial of the cause,
before the jurors were called, the prisoner moved the court to quash the writ
of venire facias, and the return thereon, for errors and irregularities
appearing thereupon, and in this connection, objected to the list furnished by
the judge to the sergeant of the jurors to be summoned under said writ, on the
ground that said list was not made according to law. Then follow in said bill
a copy of said writ and the return thereon and the said list and certificate
of the clerk thereto, which need not be here repeated. The venire facias
commanded the sergeant of the city of Richmond to ''cause t о com e before
of your corporation, to be taken from a Its: furnished by the judge of said
court, and who reside remote from the place where th; felony was committed,
and who are qualified in other respects to serve as jurors, of 769 which John
E. Poindexter stands indicted," &c. But the court overruled said motion to
quash, and said objection to said list, and directed the jurors to be called
who were summoned under the same; to which rulings of the court the prisoner
ex- cepted, and tendered his said bill of exceptions; which the court signed,
sealed and enrolled accordingly.
The. said court manifestly did not err in the rulings, or any other of them,
referred to in the said first bill of exceptions.
In the second bill of exceptions, it is stated that on the trial of the cause,
before the jurors summoned under the writ of venire facias which issued on the
17th day of April 1879. the prisoner by his counsel moved tke court to quash
the said writ of venire facias and return thereon, for errors, defects and
irregularities apparent thereon. The said writ and return thereon are inserted
in tht said second bill. The said writ commanded the said sergeant, to "cause
to come before the judge of the hustings court of the city of Richmond, at the
courthouse thereof, on the 18th day of April, 1879, two hundred persons of
your corporation, to be taken from a list furnished by the judge of said
court, and who reside remote from the place where the felony was committed,
and who are qualified in other respects to serve as jurors, of which John E.
Poindexter stands indicted. &c. And in this connection it is certified (in the
said second bill), that the list furnished by the judge to the officer, in
confor-
the names of two hundred persons to be summoned as aforesaid. But the court
overruled the said motion to quash; to which decision of the court the
prisoner excepted. and tendered his said bill of exceptions thereto, which was
signed, sealed and enrolled accordingly.
770 *The objection made to the venire facias set out in the second bill of
exceptions is: that it contains the words, "and who reside remote from the
place where the felony was committed." which ?re not in that part of the act
of the general assembly under which the said venire facias was issued; and it
is contended, that the insertion of the said words in the said venire facias,
rendered it fatally defective.
The act in question is section 4, on page 340, of the Acts of Assembly of
1877-78: which, or so much of it as need be here stated, is as follows: "In a
case where thi
l IIC \-llvwllvi\.lllll*-'l»4l" 4-u«.?\_i'-i\,>-iii\, -.*-»"». ., . - - . . _
,
the judge of the hustinKs court of the city of , punishment may be death the
writ of venire Richmond, at the court-house thereof, on the facias shall
require the officer to summon Ï4
17th day of April, 1879, twenty-four persons
murder in the first degree, it must-be shown that the prisoner, at the time of
the fatal blow, was deprived of the power of self-control by provocation he
had received, and that in deciding whether this was the case, all the
circumstances must be considered."
Citing the principal case.
persons in the manner provided in section three of this chapter; and in any
case of felony, where a sufficient number of jurors for the trial of the case
cannot be had frem those summoned and in attendance, the court may direct
another venire facias, and cause to be summoned from the bystanders.
or from a list to be furnished by the court, so
many persons as may be deemed necessary to complete the jury."
The venire facias which is first to be issued under the said fourth section is
expressly required to contain the words: "residing remote from the place where
the offence is charged to have been committed." The direction contained in the
same section, for the issuing of another venire facias in the same case, if
necessary, follows immediately, and without a full stop, but only a semicolon,
the direction in regard to the issuing of the first venire facias. It does not
repeat the words in question expressly used previously in the same section.
But if it does not imply that the persons to be summoned under the subsequent
venire facias are to possess the same qualification in that respect with the
persons directed to be summoned under the first venire facias, it certainly
does not imply that they are not to possess
771 *such qualification. The words of that part of the section are, "the court
may
direct another venire facias, and cause to be summoned from the bystanders, or
from a list to be furnished by the court, so many persons as may be deemed
necessary to complete the jury.1' If it be not implied by these expressions,
(and we do not mean to say that it is), that the jury is to be completed of
persons possessing the same qualification in regard to residence prescribed as
to persons directed to be summoned under the first venire facias, can the
contrary be thereby implied? Can remoteness of residence from the place where
the offence is charged to have been committed, be any valid ground of
objection to a person summoned from the bystanders, or from a list to be
furnished by the court for the purpose of completing the jury? In making out a
list of persons under the said fourth section, from which are to be summoned
so many persons as may be deemed necessary to complete the jury, as aforesaid,
is it any just ground of objection to a person put upon that list, that he
resides remotely from the place where the offence is charged to have been
committed? If the court in making out the list, has to choose between persons
residing remotely from the said place or in the im- mediate vicinage, is it
any just ground of j objection to the action of the court in that respect,
that it pursued the declared policy and command of the law in regard to the
first venire facias, and chose the persons residing remotely from the said
place? Or if the officer, in summoning persons named in said list, is
influenced in making his selection, by the same policy and command of the law,
can it be a just ground of objection to his conduct that he did so? In this
case, the , court named two hundred persons, exactly the number required to be
named in the > list, and the officer was required to summon ; the whole number
named; so that he
772 had to *make no selection, and the fiuestion therefore does not arise as
to
him. Whether the court, in making out the list, made any such selection, or
had any opportunity of doing so, the record does not inform us. Rut it is a
wholly immaterial
question, and it is no valid gromd of ob- jection to the second venire facias
aforesaid that it contains the words: "and who reside remote from the place
where the felony was committed."
The said court therefore manifestly did not err in its rulings referred to in
the said second bill of exceptions.
In the third bill of exceptions, it is stated, that on the return of the
sergeant upon the two writs of venire facias which were issued in this cause
on the 18th day of April. 1879, directing him to summon jurors from Alexandria
and Fredericksburg, and before calling the jurors under said writs, the
prisoner by his counsel moved the court to quash the said writs, and each of
them, and challenged the array of jurors summoned under the same, upon the
grounds that the said writs were issued without authority of law and are also
illegal and void for errors, irregularities and imperfections upon the face
thereof and the returns thereon. Then follow, in said bill, a copy of said
writs and the returns thereon. In one of the said writs the sergeant was
commanded to cause to come before the judge of the hustings court of the city
of Richmond, at the courthouse thereof, on the 21st day of April, 1879,
twenty-five persons of the city of Alexandria, each one of whom is twenty-one
years of age. and who are in other respects qualified to serve as jurors, and
who reside remote from the place where the felony was committed of which John
E. Poindexter stands indicted, to recognize on their oaths whether the said
Poindexter be guilty of the felony aforesaid or not," &c. The other of the
said two writs was to the same effect and in the 773 *same form, except that
it applied to Fredericksburg, instead of Alexandria. These writs were duly
returned by the said sergeant or his deputy, with the names of the persons
endorsed thereon who had beeti summoned by him, in accordance with the said
writs respectively; it being stated in the returns on said writs that the said
persons were so summoned by him. But the court overruled the said challenge
and motion to quash, and directed the call of the jurors under the said writs
to be proceeded with; to which opinion and decision of the court, the prisoner
by his counsel excepted, and tendered his said bill of exceptions; which the
court signed, sealed and enrolled accordingly.
The said court did not err in the rulings on any of them referred to in the
said third bill of exceptions. The said court was authorized by law to order
the said writs to be issued when it did. and the said writs were legal and
valid, in form nnd substance. The only objection marie to them seems to be.
that they command the sergeant to summon persons as jurors "who reside remote
from the place where the felony was committed, of which John E. Poindexter
stands indicted." If these words ran have any meaning or effect, in the
connection in which they are here used, we have already shown that they are in
accordance with the declared policy and spirit of the law, and are therefore
unobjectionable. If they have no meaning or effect in the said connection; if
all persons residing in Alexandria and Freder- icksburg respectively, reside
remotely from the place where the said felony was committed, then all such
persons were equally competent and eligible in that respect to serve as jurors
in the trial of the said felony, and the words in question are wholly useless,
and do not at all affect the other portions of the said writs, which must have
precisely the same effect as if the said
774 words had not been *inscrted in the writs. The maxim, utile per inutile
non
vitiatur, applies to such a case.
We think there is nothing in Wash's case, 16 Gratt. 530, or in Whitehead's,
case 19 Id. 640—which cases were cited and relied on by the counsel for the
plaintiff in error—which is in conflict with anything that has been said in
this opinion; and that it is unnecessary to state here, the points or any of
them decided in those cases or either of them.
2. The second assignment of error is in these words: "The admission by the
court of evidence of the fact, that a prior difficulty had occurred between
your petitioner and said Curtis on the same morning on which the killing of
the latter by the former occurred, which forms the subject of the indictment,
and for which latter alone your petitioner was legally on trial."
This assignment of error depends upon the fourth and fifth bills of
exceptions; the substance of which so far as material to the present enquiry
will be now stated.
In the fourth bill of exceptions it is stated, "that on the trial of the
cause, the Commonwealth introduced a witness by the name of Allen M. Lyon, who
testified as follows:" Then follows, in the said bill, the testimony of the
said witness, the substance of which, so far as seems to be material to be set
out here, is as follows: "I was present at the shooting of Charles C. Curtis
by the prisoner. It occurred between 11 and 12 o'clock, in the morning of the
3d of March, 1879, at Childrey's factory, corner of 24th and Main streets, in
the city of Richmond." The witness then proceeded to describe the situation of
the office in which the shooting occurred. "The prisoner was a clerk in my
office. I was sitting in the front office with my back to a partition, near
the door leading into the next office, where Mr. Poindexter was.
775 In that partition there is *a window. I saw the two gentlemen enter at the
Main street entrance. Young Mr. Wilson and I were in there. He was in the
corner next the street. I said, 'How are you. Mc- Guire?' Curtis came in
first. McGuire asked where Poindexter was. I nodded my head to the door
leading to the inner office and said, 'He is in there.' The window it about
four feet high. There is no glass to it, but a frame for a wire screen, but it
was not up. You can converse from one room to the other and can easily hear
what is going on. I was sitting there, as I have described, and I saw Curtis
go up to the window, almost immediately after they entered, and ask Poindexter
a question, which I did not under
stand at the moment; and Poindexter replied, 'You can't get one.' Curtis
immedi- ' ately passed across my feet, through the j door, and into the room
where Poindexter ! was. Some remark attracted my attention, I don't know what
it was; and I jumped up and went into the inner office. Mr. Curtis had
stopped, and was standing with his ¿tick upraised. Mr. Poindexter had the
pistol in his hand, and said. 'If you strike me with that stick, I will shoot
you.' McGuire then said, 'Hit him, hit him; knock him in the head, knock him
in the head.' Curtis immediately advanced and struck him. Poindexter tiring,
the strik'ing and firing continuing, until Curtis fell. I was standing
againstthedoor.1' Witness was shown the pistol, and described the wounds in
the body and head of the deceased. He stated that Curtis' back was to him,
about eight feet distant. That Poindexter was facing towards witness, and
seven or eight feet further from witness than was Curtis. Witness also
described the location bf the furniture in the room. Both of the rooms are
about fifteen feet long and eleven feet wide. The width of the room, in the
clear. 778 was stated to be about six feet *one and a half inches between two
long desks running along its sides.
The witness was then asked by the Commonwealth's attorney the following
question : Had you any conversation on that morning with the prisoner,
concerning any difficulty between himself and the deceased, occurring on that
morning; and -if so, what was it? To which question and any answer thereto the
prisoner by his counsel objected. And thereupon the Commonwealth's attorney
announced that he intended to follow the question up by evidence that the
prisoner had conspired with another, on the morning of the homicide, to whip
the de- : ceased. Notwithstanding which the prisoner : still objected to said
question and any answer thereto. Nevertheless the court overruled the
objection, and permitted the witness to answer the question, which answer is
in substance as follows:
Answer. "I had: soon after getting to my office, say about 9l/¡ o'clock A. M.,
he (the prisoner) told me, that he had had a difficulty with a young man up
town by the name of Curtis, at VVingo, Ellett & Crump's store, corner of 10th
and Main streets, and that he had horsewhipped him. I think I asked him what
for. He said that he had insulted a young lady, friend of his. that went in
there to see about some shoes, and that she had carried a pair of shoes there
to have something done to them; that on taking them out of the bundle, he had
remarked on the size of them, and said that it was a very pretty 1 little foot
that went in it. Some similar remark was repeated several times, and she had
asked him. please to make no remarks on her foot, to wrap them up and give
them back to her; that then Curtis had repeated it was a pretty little foot
and asked her to stick it out and let him look at it. or let him see it: and
some similar remark, and she paid 777 *him. She laid down the money to pay
what she owed him, and started to the door, and as she got near the door he
remarked, she hadn't left the right change. She asked how much mistake she had
made, and he said she owed one dollar and seventy- five cents and had only
paid seventy-five cents. She came back to give him the additional amount, and
he turned to her and remarked, 'O yes, here it is," opened his hand and showed
her the other dollar. They then went to the phaeton, and he helped her in, and
in putting her in squeezed her arm. That is about all he said. Half an hour
later had another little conversation with the prisoner. I went out into the
yard or somewhere, and coming back I said, 'John, the first time you go up
town, that young man will be shooting you, if you don't look out.' Said he 'O
no, that is all settled; there'll be no more of that.' That's about all I
believe."
To which ruling of the court, in permitting the said question to be asked and
said answer to be given, the prisoner excepted, and prayed that his said bill
of exceptions (to- wit: the fourth), might be signed, sealed and enrolled,
which was done accordingly.
In the fifth bill of exceptions it is stated in substance, among other things,
as follows, to-wit: that after the proceedings set forth in said bill of
exceptions No. 4, which are here referred to as if here repeated at large, the
said witness. Allen M. Lyon, proceeded with his testimony, substantially as
follows:
He produced a diagram of the room in which the homicide occurred, which is
annexed to his evidence as part thereof. He explained the location of the
outer and inner offices, and the position of the parties and the furniture, as
appears on said diagram. "I suppose if the door had been shut it would have
touched my back." "Poindexter's 778 face was towards me, but *I cannot say
that he saw me. I did not see Mr. McGuire in the inner office at all." "The
distance from where Curtis, the deceased, stood talking to Poindexter at the
window to the door leading to the rear office, is eighteen feet; from where
Poindexter stood to the same point, is fifteen feet. When Curtis fell, his
head struck one of the stools as I show in the diagram. I advanced to him and
reached out my hand as if to take hold of him. I saw that he was shot in the
head, and started immediately for a doctor." "As he fell," "the stick dropned
from his hand and lay by his right side. When Curtis fell. Poindexter said,
'My God, 1 did not want to shoot the man; can't some of you do something for
him.' I heard him say this just as I was going for the doctor. I have no doubt
of my own position. One of the balls went through my sleeve and struck the
door. I found four balls in Curtis' body. I did not understand at the time
what Curtis said; it came to me afterwards that he said. 'I want an apology.'
I thought at first he said something about 'policy.' There was some
expression. I don't know what it was, before I went in. Curtis had haulted.
Just as I came in, Poimlcxter said, 'If you strike me with that stick I'll
shoot you; I'll shoot you.' Curtis said, 'I am unarmed.' McGuire said, 'Hit
him; hit him; knock him in the head,'
or 'kill him; kill him.' I rather think the expression was, 'Hit him,' I am
positive. I know he used the expression 'Knock him in the head.' When that was
uttered, I thought McGuire was in the outer office. I did not go up to Curtis
because I was right in the line of the pistol. When I first saw Poindexter he
was near the end of the room. He had retreated from the window. I could not
see him at the window, but if he was there, as McGuire says he was, he had
fallen back from that position towards the end of
779 the room by a window with bars *over it." "I thought nothing of the size
of
the combatants while the conflict was going on. When I saw Curtis' bosom
exposed, I thought he was a tolerably good sized man. He was, in my judgment,
a larger man around the chest than Poindcxter. The blows were delivered with
rapidity and force. No shot was fired until McGuire's exclamation, and Curtis
advanced and struck Poindexter. I feel positive Curtis struck first; cannot
say how often he struck. The blows and shooting were in rapid succession.
Poindexter could fall back no further after he warned him. He had then fallen
back as far as he could. The whole thing was very rapid. I saw no wavering of
blows on the part of Curtis until he fell. I could not have told he was struck
until then. Poindexter has lived with me over six years. I never looked upon
him as a robust man. I looked upon him as a delicate, and as a quiet and
peaceable man. Poindexter was a taller man than Curtis, but my impression was
that Curtis was the larger man. Curtis had room for a pretty free use of the
stick. Used it overhand. TIave seen the prisoner with a pistol i before on
occasion of his going to a farm i belonging to him about Bosher's dam, eight
or nine miles above the city. He visited that place after he was done his
daily work with me. Generally went up in the evening, and I believe on such
occasions carried a pistol. I do not identify the pistol as the one I had ever
seen before. The prisoner was not going to Bosher's dam that morning. Do not
know I ever saw it in the desk. Have gone in their often." Witness was shown
the pistol with seven chambers, six empty and one loaded. The witness said "he
did not really know how many shots were fired, and that he did not know which
end of the stick Curtis held. The rapidity of the firing was illustrated by
snapping his thumbs, at intervals of about two seconds." A
780 copy of the *diagram referred to in the testimony of this witness is made
a part of the record and embodied in this bill of exceptions.
John J. Wilson, another witness, testified "that he was present at the
killing. When Mr. Curtis came in he was at the window in the front office,
looking on Main street. Heard McGuire ask Mr. Lyon if Poindexter was
in—McGuire came in first. Did not hear anything until I heard Poindexter
exclaim to Curtis, 'Stand back." Got up and saw no more until I saw them
strike and shoot. Curtis struck first. Can't tell the number of blows and
shots.