
    *Montague v. Commonwealth.
    October Term, 1853,
    Richmond.
    1. Criminal Law — Jurors—Voir Dire — Statutory Disability — Power of Court to Set Aside. — On a trial for a felonious offence, the court, of its own motion, without the suggestion of either party, may examine upon oath all who have been summoned to serve upon the jury, touching: any disability created by statute, such as infancy, want of free- ' hold or property Qualifications, or in a capital case, conscientious scruples on the subject of capital punishment; and upon any such disability being thus made to appear, or if it be shown that any one summoned has been convicted of perjury, the court may and should set aside any such juror of its own action, without objection made by either party.
    2. Same — Same—Natural Disability — Power of Courtto Set Aside — Effect of Erroneous Exercise. — On a trial for felony the court, of its own motion, without the suggestion or consent of either party, may excuse or set aside a juror who, though in all other respects competent, is disabled physically or mentally, by disease, domestic affliction, ignorance of the vernacular tongue, loss of hearing or other like cause, from properly performing the duties of a juror. But the erroneous exercise of this power is a matter of exception by the prisoner, for which the judgment of the court may be reversed.
    3. Same — Same—Challenge for Cause — Necessity of Showing — When Overruled. — As no challenge to a juror is allowed to the commonwealth except for cause, when such challenge is made, the cause should be shown, and should be a good and legal cause for the exclusion of the juror; otherwise it should be overruled.
    4. Same — Challenge—Right of Accused to Except to Allowance or Disallowance of — Review on Appeal.— The decision of a court allowing a challenge on the part of the commonwealth, or disallowing a challenge on the part of the accused, whether such challenge be a principal challenge or a challenge to the favor, is matter of exception on the part of the accused; which it is right to have reviewed in the appellate court.
    5. Same — Jurors—Power of Court to Set Aside in Absence of Challenge. — The court cannot of its own. motion, where no challenge is made, without good cause, set aside a juror, except where'he is disabled physically or mentally from properly performing the duties of a juror, or is disqualified by statute.
    
      6. Appellate Practice — Jurors —Examination—Exceptions.  — 1Though in all cases great weight is justly due to the opinion of a court before whom the jurors are questioned and examined, yet upon exception taken the appellate court must judge from the facts therein stated, whether the reason for setting aside a juror is good and sufficient or the contrary.
    *7. Criminal Laws — Jurors—Opinion Formed— Competency — Case at Bar. — A talesman when examined on his voir dire said that he had heard a great deal said about the case, but that he had not heard or read the evidence given at the examinations before the mayor or Hustings court; and that he had formed no opinion on the subject. He then stated that since the prisoner had been in jail his wife and family had moved to the lot adjoining his residence, and had lived there; that they were often at his house, and that there was great intimacy between the families, and on that account he would rather not sit in the case, that his mind might be influenced: and in answer to a question from the court he said he was unwilling to trust Rlmself under the circumstances: He I thought he could give the prisoner a fair trial on ! the evidence: That he had no prejudice for or against the prisoner, there was no connection "by blood or marriage between them, and that he had never spoke to the prisoner’s wife or family on the subject of the trial. He is a competent juror, and it is error to set him aside, for which the prisoner may except and have the judgment reversed. I !
    S. Appellate Practice — Jurors—Setting Aside — Prejudice.— The appellate court will not enquire whether injury has been done to the prisoner by improperly setting aside a competent juror, but the law will intend prejudice to the prisoner.
    At the November term 1852 of the Circuit court of Petersburg-, Lewis Montague was indicted for the murder of Gardener G. Thompson. His trial came on in June 1853, when he was convicted of murder in the first degree, and sentenced to be hung.
    Upon the trial several questions were made by the prisoner, but only one of them was considered by this court: That relates to the exclusion of a juror. After the original panel had been exhausted, the court directed thirty-six persons to be summoned to attend as jurors. One of the persons so summoned was John A. Ezell, who being sworn on his voir dire, and being interrogated by the court, whether he had made up and expressed any opinion as to the guilt or innocence of the prisoner, answered that he had heard a great deal said about the case, but that he had not heard any of the evidence given in at the examination before the mayor or before the Hustings court, and had not read any account of either of those examinations; and that he had not formed any opinion on the subject. *He then stated voluntarily and without having been enquired of as to that matter, that since the prisoner had been in jail, the wife and family of the prisoner had moved to the lot adjoining his (Ezell’s) residence, and had lived there; that they were often at his house, and that there was great intimacy between the families; that ■on that account he would rather not sit in the case; that his judgment might be influenced. And being asked by the court, whether his unwillingness to serve arose from its being an unpleasant duty, or because he was unwilling to trust himself under the circumstances, he replied, it was because he was unwilling to trust himself under the circumstances. And being asked whether he could now give the prisoner a fair trial on the evidence which he might hear on the jury, he answered, that he thought he could. He also stated that he had no prejudice for or against the prisoner: That there was no connection by blood or marriage, between himself and the prisoner or their families. He also stated that he had never conversed with the prisoner’s wife or any of his family, or spoke to any of them on the subject of this trial. And thereupon the court rejected the said Ezell as a juror; and the prisoner excepted. Upon the application of the prisoner this court granted him a writ of error.
    Joynes and Patton, for the prisoner,
    insisted:
    1st. That Ezell was a competent juror, Hailstock’s Case, 2 Gratt. 564; Clore’sCase, 8 Id. 606; Wormeley’s Case, supra 658.
    2d. That it was error to reject him from the panel, for which the prisoner was entitled to have the judgment reversed. They insisted that the opinion to the contrary expressed in Clore’s Case, was not sustained bj the authorities cited to support it, and was condemned by the uniform current of decisions in England, and by our own statute. They cited The King *v. Willis, Barnard, King’s Bench R. 108; President, &c. of Brooklyn v. Patchen, 8 Wend. R. 47; Heath’s Case, 1 Rob. R. 735; Sperry’s Case, 9 Leigh 623; The King v. Inhab. St. Michael, 2 W. Bl. 718; Doebler v. Commonwealth, 3 Serg. & Rawle 237; Eaton v. Commonwealth, 6 Binn. R. 447; Jones v. State, 3 Blackf. R. 37; Commonwealth v. Spring, Amer. Law Reg. 424; Leath’s Case, 1 Va. Cas. 151; State v. Shaw, 3 Ired. R. 532, and Gaston, J.’s opinion in this case; Rawls v. The State, 8 Smedes & Marsh. 599; Commonwealth v. Parker, 2 Pick. R. 550; State v. Benton, 2 Dev. & Bat. 196; The King v. Edmonds, 4 Barn. & Aid. 471; State v. Lytte, 5 Ired. R. 58; Hines v. The State, 8 Humph. R. 597 ; Boles v. The State, 13 Smedes & Marsh. 398; Judge v. The State, Georgia R. 173; Commonwealth v. Lesher, 17 Serg. & Rawle 155; Code, ch. 208, l 9, p. 744.
    3d. That it was error in the court to set aside the juror, upon its own motion, without any objection either by the prisoner or the attorney for the commonwealth. The opinion of Gaston, J., in Benton’s Case, 2 Dev. & Bat. 196, 218; Spring’s Case, Amer. Law Reg. 424; 1 Rev. Code of 1819, 607.
    The Attorney General, for the commonwealth,
    insisted:
    1st. That the judge who presided at the trial having held that Ezell was not an impartial juror, he must be so considered in this court. This principle is referred to in Clore’sCase, 8 Gratt. 606; People v. Bodine, 1 Denio’s R. 281; Honeyman’s Case, 3 Id. 121; Ereeman’s Case, 4 Id. 9, 31-37; Harrisburg Bank v. Poster, 8 Watts R. 304.
    2d. That the court had authority to set aside the juror without any objection expressly made by either the prisoner or the attorney for the commonwealth. Cornell’s Case, 2 Mason’s R. 91, 94, 104; Corn-monwealth *v. Stockley, 10 Leigh 678; Damon’s Case, 13 Wend. 351; Lewis’ Case, 9 Smedes & Marsh. 115; Benton’s Case, 2 Dev. & Bat. 196; Hines v. The State, 8 Humph. R. 597. And such is the constant practice, in the Circuit courts.
    3d. That a challenge to the favor raises a mere question of fact, whether the juror is partial; which question was at common law decided bj>- triers. That the law of Virginia which makes the court the trier, does not change the nature of the question: It remains a question of fact to be decided upon all the evidence furnished, as well the statement and deportment of the juror, when examined as a witness touching' his own indifferencj', as those of other witnesses, if others are examined. From the decision of this fact by the triers, whether they be the court or others, there can be properly no appeal, because no other tribunal can weigh the evidence on which it rests. And it might well be contended that there has been no case in Virginia in which judgment has been reversed for a decision of the court on a challenge going only to the favor. But he insisted that at most the courts had never reviewed such decisions further than to see that no partial juror had been put on the prisoner; and that was enough for this case. He insisted that the distinction was between cases where there was ground of principal challenge and where it was a ground of challenge to the favor. He referred to the opinion of Gaston, J., in Benton’s Case, 2 Dev. & Bat. 213, 221; Clore’s Case, 8 Gratt. 606; Cornell’s Case, 2 Mason’s R. 91; Tatum v. Young, 1 Port; R. 298, 308; Marshall’s Case, 8 Alab. R. 302; Henry’s Case, 4 Humph. R. 270.
    
      
      Appellate Practice— Jurors— Challenge — Right of Accused to Except to Disallowance. — The decision of a court allowing a challenge on the part of the commonwealth or disallowing a challenge on the part of the accused, whether such challenge be a principal challenge or a challenge to the favor, is matter of exception on the part of the accused, which is his right to have reviewed in the appellate court. The appellate court will not enquire whether injury has been done to the prisoner by improperly setting aside a competent juror, but the law will intend prejudice to the prisoner.
      In Thompson v. Douglass, 35 W. Va. 337,13 S. E. Rep. 1015, the principal case on this point is disapproved, the court holding that, the mere exclusion of a juror upon a challenge for cause upon insufficient ground will not be cause for reversal; and in commenting upon the principal case, at page 340, Brannon, J., says: “I am of opinion that this decision (Montague’s Case) is erroneous, and hurtful to the practice of the courts and the administration of justice, and ought not longer to prevail. The doctrine that harmless error shall not reverse and render fair trials abortive has made great progress since the date of the decision cited. Judge Dee gave no reasons in the opinion, except that in criminal cases the law would intend harm to an accused where he is deprived of a right. He did not even refer to the qucere in Clore’s Case, 8 Gratt. 606, and the strong argument of Judge Lomax, probably overlooking them.”
    
    
      
      Appellate Practice — Jurors—Examination—Exceptions. — Though in all cases great weight is justly due to the opinion of a court before whom the jurors are examined and questioned, yet upon exceptions taken the appellate court must judge from the facts therein stated, whether the reason for setting aside a juror is good and sufficient. Por this proposition, see the principal case cited and approved in Cluverius v. Com., 81 Va. 793.
    
    
      
      Criminal Law — Jurors—Opinion Formed — Competency. — See, citing the principal case, Vaughan v. Com., 85 Va. 674, 8 S. E. Rep. 584; Muscoe v. Com., 86 Va. 450,10 S. E. Rep. 534, and applying the doctrine to instructions.
      On this question, see the principal case cited in Jackson v. Com., 23 Gratt. 933, and note; foot-note to Poindexter v. Com., 33 Gratt. 766; foot-note to Wormeley v. Com., 10 Gratt. 658; Cluverius v. Com.,' 81 Va. 885; State v. Baker, 33 W. Va. 324, 329, 10 S. E, Rep. 641, 643.
    
   SHE, J.,

delivered the opinion of the court.

It seemeth to the court here, that in proceeding to the trial of a party charged with a felonious offence, it *is competent to the court of its own motion without the suggestion of either part3r, to examine upon oath all who may have been summoned to serve upon the jury touching any disability created by statute, such as infanc3r, want of freehold or property qualifications, or in a capital case, conscientious scruples on the subject of capital punishment; and that upon any such disability being thus made to appear, or if it be shown that any one so summoned has been convicted of perjury, such court lawfully may, and should, set • aside any such juror of its own action, without objection made by either party; and that in such case the disqualification or disability created by statute is to be distinguished from matter of challenge by the parties, which imputes no absolute want of capacity or eligibility to serve on any such case, but a want of fitness to serve on the particular case at bar for the cause assigned.

And it further seemeth to the court that in a case of necessity and to prevent a failure of the ends of justice, it is also competent for the court to excuse or set aside a juror who, although free from any statutory disability, and possessing the legal qualifications of a juror, and standing indifferent between the commonwealth and the accused, is yet disabled, physically or mentally, by disease, domestic affliction, ignorance of the vernacular tongue, loss of hearing or other like cause, from properly performing the duties of a juror; and this of its own motion without the suggestion or consent of either party; but that the power of so doing is to be exerted with due caution and circumspection, and in the exercise of a sound discretion, for the same purposes and upon the same grounds and principles which govern the court in the exercise of its discretion to discharge a jury sworn in a criminal case before they shall have rendered a verdict ; the former power being in effect but a corollary from the *latter, which has been confirmed by a statutory provision.

And it further seemeth to this court, that if in any such' case, a Circuit court shall have erroneously exercised its discretion by discharging any such juror without such good and sufficient cause as aforesaid, it is matter of exception on the part of the accused, for which the judgment of the said Circuit court may be reviewed and reversed in this court.

And it further seemeth to this court, that as by the law of Virginia, no challenge of a juror is allowed to the commonwealth except for cause, so when any such challenge shall be made on the part of the commonwealth, the cause thereof ■ shall be shown, and the same must constitute a good and legal cause for the exclusion of such juror; and if the same be found vague, uncertain or irrelevant, it should be overruled by the court.

And it further seemeth to this court, that as by law all challenges are to be tried in the court in which they are made; and as the court is required to sign a bill of exceptions in a criminal cause, when tendered by a party for whom a writ of error lies to an appellate court, the decision of a Circuit court allowing a challenge on the part of the commonwealth, or disallowing a challenge on the part of the accused, is matter of exception on the part of the accused, whether such challenge be a principal challenge or a challenge to the favor; and that it is the right of the accused to have such cause of challenge reviewed in this court, and if the same be found insufficient, that the judgment of the court should be for that cause reversed.

And it further seemeth to this court that as a court in a criminal cause where a direct challenge is made on the part of the commonwealth to a juror cannot rightfully allow the same and set aside the juror unless *good and sufficient cause be shown for such challenge, still less can the court of its own motion, where no challenge is made, without cause or without good and sufficient cause, set aside a juror, except as has been hereinbefore declared.

And it further seemeth to this court, that although in all cases great weight is justly due to the opinion of a court before whom the jurors are questioned and examined, yet that upon exception taken, this court must judge from the facts therein stated, whether the reason for setting aside a juror is good and sufficient or the contrary. And that upon the facts set out in the bill of exceptions taken to the exclusion of the juror John A. Szell, it seemeth to this court that said juror even if he had been directly challenged for cause on the part of the commonwealth, should have been adjudged to stand impartial and indifferent between the commonwealth and the plaintiff, and that no just cause of exception whatever is made to appear; and that if no other objection were shown to the said Ezell, it was the right of the prisoner that he should be placed upon the panel out of which the jury was to be chosen.

And it further seemeth to this court that it is no answer to this objection that the said juror, John A. Ezell, was not one of the original twenty-four summoned and returned upon the venire facias in the cause, but was one of the thirty-six talesmen summoned by order of the court after the panel of the original twent}’-four had been exhausted, because in the opinion of this court, the court possesses no other or greater power to set aside a talesman who has been duly summoned than it does to set aside one returned upon the original panel.

And it further seemeth to this court, that while it may not be impossible nor yet difficult to show how the plaintiff might have been prejudiced by the exclusion *of the juror Ezell, under the facts and circumstances disclosed by the record in this case, yet that it is not necessary that the court should enter upon any such enquiry; because in the opinion of this court where any legal right has been denied to a party on trial for a criminal offence, or any of the safeguards thrown around him by law for his protection, has been disregarded, it is not for this court to say what might or might not have been the effect upon the case of the accused: The law will intend prejudice if it be necessary to enable him to exercise his right to have the judgment of the court reviewed in the appellate tribunal, and will hold it impossible in such a case to say that a fair and impartial trial has been had.

And it seemeth further to this court, that as the questions arising upon the record in this case, other than those upon which the opinion of the court has been hereinbefore expressed, may not again occur upon any future trial of this cause, it is unnecessary for this court at this time to express any opinion itpon them.

Wherefore and for the reason hereinbefore expressed, it seemeth to the court here, that the judgment aforesaid is erroneous. Therefore it is considered that the same be reversed and annulled; and it is ordered that the verdict rendered by the jury be set aside, and that the cause be remanded to the said Circuit court with directions to proceed in the manner prescribed by law to cause another jury duly qualified to come and to say whether the said Rewis Montague be guilty of the felony wherewith he stands accused or not guilty, and further to proceed as the law requires.

Which is ordered to be certified to the said Circuit court of Petersburg.

Judgment reversed.  