Doyle v. Commonwealth

40 S.E. 925, 100 Va. 808, 1902 Va. LEXIS 89

• Court: Supreme Court of Virginia
• Decided: March 12, 1902
• Status: Published

Opinions

Keith, P.,

delivered the opinion of the court.

Plaintiff in error was indicted in the Corporation Court of the- city of Lynchburg for assaulting -Maggie L. Coomes with intent to commit rápe. The jury found 'him not guilty of this •charge, but guilty of assault and battery, and fixed his punishment at one year’s imprisonment in jail, and a fine of $1,000. The prisoner moved to set this verdict aside, which the Corporation Court refused to do, and from this judgment the case is -before us upon a writ of error.

When the jury were being selected T. A. Jennings, one of the panel, stated upon his voir dere that he had formed and expressed an opinion in the case; that it was based upon newspaper accounts and current reports; that, at the time of his ex-animation, it was quite a decided opinion, "but that he believed he could fairly and impartially decide the case according to the evidence adduced at the trial. Upon cross-examination, he stated that his mind was “made up from the reports I have heard and read, and it would take evidence to change it.” Thereupon counsel for plaintiff in error objected to Jennings as a juror, and the court sustained the objection, “but before said Jennings retired from the panel, counsel for prisoner withdrew their exception, and he was elected as a juror.” Upon motion for a new trial, counsel filed the affidavit of one Percival that shortly after the offence was committed he heard Jennings discussing the matter, and that he said, among other things, that “the severest treatment possible would be too> good for Doyle.”

The affidavit of one Robert P. Jennings was also filed, who swears that he is “the uncle of T. A. Jennings, who was one of the jurors who tried and rendered the verdict in the case of Commonwealth against Edward J. Doyle, at the June term of the Corporation Court of the city of Lynchburg (he being the son of my brother); that Mittie Lee, a sister of Mrs. J. R. Coomes, the mother of the prosecutrix, Maggie L. Coomes, married Joel "W". Jennings; that Tiny Jennings, a sister of the said Joel W. Jennings, married me and is now my wife; and that the residence of all of said parties has been or is in the same city—Lynchburg.”

We have copied this affidavit in full, because in no other terms are we able to state the supposed relationship by affinity between Maggie L. Coomes, upon whom the assault is alleged to have been made, and T. A. Jennings, the juror, and because we therefore thought the affidavit itself the strongest possible refutation of the contention that the juror was disqualified by reason of the facts deposed to by Robert P. Jennings, or that these facts could be considered as in any degree influencing, our conclusion. 1 ■

“Affinity is the relation contracted by marriage between a Husband and his wife’s kindred, and between a wife and her husband’s kindred, in contradistinction from consanguinity, or relation by blood. : A number of authorities define affinity as the connection which arises from marriage between the husband and the blood relatives of the wife, and between the wife and the blood relatives of the Husband; or, in other words, they hold that it does not include persons related to the spouse simply by affinity; -and it would seem that this definition is supported by the weight of authority.” 1 Artier. & Eng. Ency. of Law (2d ed.), 911. . i

Consequently it is held in Johnson v. Richardson, 52 Tex. 482, “that the sister and niece of a juror are the wives of two brothers of a party to a suit, constitutes no ground of disqualification.”

In Moses v. State, 11 Humph. (Tenn.) 232: Hpon a trial for murder, a juror stated that the sons of his wife by a former marriage were second cousins of the deceased; and this was held not to disqualify him.

“A juror whose brother is joined in marriage with a sister of one of the parties, is not disqualified to sit in the trial.” Chase v. Jennings, 38 Me. 44.

In Kirby v. State, 89 Ala. 69, it appears that the juror Bryant, being a cousin of the deceased, was related by affinity to the mother of the deceased, but bore no relation to deceased himself, and yet he was held to be a competent juror.

In Jacques v. Commonwealth, 10 Gratt. 690, on a trial for arson, it was held that the nephew of the deceased wife of the person whose house was burned, if she left children, is an incompetent juror, and if she left no issue, that was a fact for the prosecution to show, and not being shown, the objection was valid.

It is obvious that the case under consideration does not come within the terms of the definition as to what constitutes relationship by affinity. The juror himself says in his counter affidavit that he was utterly unmindful of the fact, and he could hardly have been otherwise, for the connection is so shadowy that it eludes all effort to define it, and is too unsubstantial to be treated as exercising any possible influence upon a juror’s conduct. "When the objection to Jennings as a juror was withdrawn, prisoner had been fully advised that he had formed and expressed an opinion which it would require evidence to remove, and by the course which was pursued must be held to have taken the chances as to that opinion being favorable or adverse, and to have waived all objection.

In Bristow’s Case, 16 Gratt. 646, the couxt said: “To pex*mit prisonex-s to avail themselves after vex’dict of pre-existing objections to the competency of jurors as a matter of right would not only be -unreasonable, but most mischievous in its consequences. Delays in the administx’ation of criminal justice and the chances for the escape of the guilty would be greatly increased. Proper verdicts, especially in trials for grave offences, would be continually set aside. A prisoner knowing, or wilfully remaining ignorant of the incoxnpetency of a juror, would take the chances of a favorable verdict with him upon the jury; and if the vex’dict should be adverse, would re'adily enough make the affidavit necessaxy to avoid its effect.” Poindexter’s Case, 33 Gratt. 792; Hite’s Case, 96 Va. 489.

In Simmons v. McConnell, 86 Va. 500, it was held: “After verdict, they (the defendants)" cannot have a new trial for this caxxse, unless it appeal’s that injustice has been done to them by admitting the disqualified juror.”

And in Beck v. Thompson (W. Va.), 7 S. E. Rep. 447, it was said: “A new trial will not be granted on account of the disqualification of a juror for matter that is a principal cause of challenge which existed before he was elected and sworn as such juroi’, but which was unknown to the party until after the trial, and which could not have been discovered by the exercise of . ordinary diligence, unless it appears from the whole case, made before the court on a motion for a new trial, that the party suffered injustice from the fact that such juror served in the trial of the case.”

It appears from these authorities that in cases where the cause of challenge is unknown at the time the juror is elected and sworn, and which could not have been discovered by the exercise of ordinary diligence, it will not be a sufficient ground for a new trial unless it is made to appear that the parties suffered injustice from the fact that such juror served in the trial of the case.

The case is immeasurably stronger where the disqualification of the juror was known, had been established, and his name had been stricken from the panel. We appreciate the difficulty which, on such occasions, confronts counsel. We recognize the great responsibility resting upon them, but the fact remains that in withdrawing the objection to a juror under such circumstances they had, in contemplation of law, taken the “chances of a favorable verdict with him upon the jury.” Bristow’s Case, supra.

It appears from bills of exception taken during the trial and by affidavit made upon motion to set aside the verdict, that during the progress of the trial the court-room was filled to its capacity with citizens who manifested a strong sympathy with the prosecution. Upon one occasion, when the mother of the young lady upon whom the assault was committed was testifying, there was applause, which the court promptly rebuked, and threatened to clear the court-room. Upon another occasion, during the argument of counsel wh'o assisted the prosecutor, his remarks were 'applauded, and counsel himself reminded the audience that they were in a court of justice, and such-conduct was improper.- “The court again threatened to clear the-courtroom, and then had several police officers stationed in the rear of the court-room to prevent' a recurrence of these demonstrations, and" to detect the offenders:”

It is much to be desired that courts aud juries should hear and determine causes submitted to them, especially those which involve the life or liberty of the citizen, free from all extraneous influence of whatever character; that the trial should be guided and directed by the “cold neutrality of an impartial judge,” and that the jurors should act without fear or favor with an eye single to meting out justice regardless of all except the law and the evidence. But such an ideal is impossible of attainment, and unhappily that class of cases most likely to. stir the passions and sway the judgment of jurors appeals to the sympathies of the community, and the day of trial finds a crowded courtroom. With such an environment it is impossible that the jury should 'be unconscious of its influence. All outward expression may be suppressed, but its subtle force will be felt despite all efforts to curb and restrain it. Recognizing its existence, and for the want of a better name, we call it magnetism, but however designated, all realize and confess its power. How to meet and counteract it so as to secure to the prisoner a fair trial, and to be assured that the verdict is the free expression of an impartial jury, is a difficult problem. Much must be left to the judgment and discretion of the trial court. It has ‘ample power to vindicate its dignity and authority by the punishment of the disorderly. It may call to its aid the police force, increase its numbers, punish their inefficiency, and exclude any and all persons whose presence is not deemed necessary. Acts 1899-1900, p. 882. Where it has failed to exercise its discretion with becoming vigor, or the public has been so violently excited as to overawe the jury and afford ground for the belief that justice has not been done, it would be the duty of this court to set aside the verdict, but the case before us is not such as to demand or justify interference on our part. The Corporation Court seems to have done all that it ought to have done.

Another ground of error is that the. fine is excessive. The only limitations upon the power of a jxxry in assessing fines in cases such as this is that found in the bill of rights, which declares “that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted,” and in the rule that the verdict will be set aside where it is such as to satisfy the court that the jury was influenced by prejudice or ill-will.

Counsel for plaintiff in error remind us that as to several other offences of a very grave character the fine has been limited by statute to a sum not exceeding $500. This argument does not strike us as being persuasive of the conclusion to which it is adduced. The jury, independent of such statutes, exercises a discretion controlled only in the manner which we have indicated. That the Legislature has seen fit to restrict their power in certain cases, leaving it undiminished in others, woiild seem to have the opposite bearing, if any. However that may be, the case before us stands unaffected by any statutory limitation of which we are advised, and we cannot say that the imposition of a fine of $1,000 for an assault by a man upon a young woman is so excessive as to be repugnant to the constitutional provision which we have cited, or constrain the court to say that it was evidence of bias or prejudice on the part of the jury.

We come now to the only remaining assignment of error, that the verdict was contrary to the law and the evidence.

The families of Miss Ooomes and plaintiff in error are neighbors, living in the city of Lynchburg. She was a frequent visitor at the home of plaintiff in error, and they were upon terms of familiar intercourse. Upon the day of the occurrence which is the subject of this prosecution, she, passing along the street in the direction of her home, was joined by plaintiff in error. They walked together a short distance to the point where their paths diverged, and they parted, he going in the direction of his and she towards her home. After going a few steps he asked her to go with him, and she replied: “Ho, I won’t go. I am afraid Katie (his sister) might not be at home;” to which he replied, “Of course she is at home;” aud thereupon they walked together to his father’s house. When they got there he went around the back way through, the basement to open the front door for her. After opening it, he went about half-way up the stair leading to the upper floor and saying: “Katie must be in the kitchen,” came down and closed the door at the rear of the hall, and those opening into the parlor and sitting-room, and coming to where she stood looking at a vase of roses, passed her, and pushed the front door, which did not shut, but left an open space of something more than am. inch. Then approaching the prosecutrix, he put his arm around her and attempted to kiss her, and she struck him in the face with her purse and screamed for his sister. He did. not, however, release her, hut tightened his hold, and, with on© arm. around her, he put his other hand under her clothes, between “her knee and her waist.” Then for the first time, as she says, it. “flashed across me what he was doing, and then I told him to let me loose, and that I intended to tell papa exactly what he did, and he let me loose and said, <-What,’ just like he was surprised, and then I turned and slammed the door in his face 'and went out the gate, and into the street, and on the way met' Mr. Burrow.”' She was so violently agitated as to attract his attention. He asked her what was the matter, and she told him- that she had been insulted. 'She went home, and at once told her mother what had occurred.

There is a conflict in the evidence upon many points. The narrative, of the transaction as given hy plaintiff, in error, would acquit him of. iall 'criminal intent, and reduce the offence to-simple assault, and the verdict of . the jury might well he deemed a harsh punishment if his account.is to be accepted.. But. the jury 'are the. judges of the-credibility of witnesses, and their verdict solves , all conflicts and contradiction among them. A court, has no power to grant a. new trial unless the verdict is- against the. law, or- is contrary to. the evidence,, or is. without evidence to support it. Grayson’s Case, 6 Gratt. 723. These principles are conclusive in this ease, for the testimony adduced by the Commonwealth is amply sufficient to support the verdict.

The juay acquitted him of the horrid crime with which he was charged, but the facts recited show that he committed an indecent assault. It is unhappily too- true that the bonds of family and social discipline are much relaxed; that the intercourse between the sexes; and especially between the youth of both sexes, is far more free and nn,conventional than in former times. Little authority is exercised to regulate or restrain the heedless or the vicious, except the law as administered in the courts, and the circumstances disclosed in the evidence before us, while they do not sustain the principal charge, prove an offence which it was the duty of the jury to punish with a severity greater than would be proper in ordinary cases of assault and battery. It was that of a young man upon a respectable girl, just verging upon womanhood, whose person he should have held sacred and inviolate. He seeks to excuse himself by recalling the intimate relations existing between them, and something may be pardoned to that consideration, but it cannot be doubted that be transcended the limits which had theretofore characterized their intercourse.

The judgment of the Corporation Court of the city of Lynch-burg must be affirmed.