
    
      Tooel v. The Commonwealth.
    December, 1841.
    Criminal I.av. .(cries Necessity for Keeping Together before Whole Panel Chosen,- -In impaneling a jury for trial of an indictment of felony, there is no necessity to keep jurymen who have been elected and sworn together and separate from other persons, under charge of the sheriff, until the whole number shall be elected and sworn.
    Same —Same—Same—Case at Bar. — In impaneling a jury for trial of an indictment of felony, eight are elected and sworn, and three elected but not sworn ; one who had been sworn separates from tlie rest, goes some miles off and stays some hours ; the other ten are put in charge of sheriff, to he kept together and separate from other persons, till ensuing morning; upon attachment against the absconding juryman, he is taken the same night, and put and kept in same room with the other jurymen till next morning, hut there appears to have heen no conversation on the subject of the prosecution ; next morning, by allowance of the court, this juryman is challenged by the prisoner for cause, and set aside ; the jury is then completed, and find the prisoner guilty: Held,
    i, Satqe — Same—Same—Same.—The separation of the absconding juryman from his fellows, and his subsequent association with them, though he was afterwards struck from the panel, does not vitiate the verdict, and is no good reason for a new trial.
    
      ■2. Same — Same—Challenge for Cause — Discretion.— After a juryman has been elected and sworn, the court may, in its discretion, allow the prisoner to challenge him for cause, and strike him from the panel.
    Petition for a writ of error to a judgment of the circuit superior court of Rocking-ham. Tooel was indicted upon the statute 1 Rev. Code, ch. Ill, jj 30, p. 428, for feloniously carrying thirteen slaves the property of Kipling of Rockingham, one slave the property of Kedrick of the same county, and another slave the property of Brill of the same county, out of the county of Rockingham into the county of Shenandoah in Virginia, without the consent of the owners, or either of them, and with intention to defraud and deprive the respective owners of the slaves. The prisoner was arraigned on the 13th October 1841, and pleaded not guilty. Of the jurors summoned on the venire facias, he challenged some for cause, and all the others peremptorily; and then eight *jurors called from the by-standers were elected and sworn, among .whom was one Miller, and three others were elected, but not sworn. The venire and the by-standers being all exhausted by challenges and election, the court ordered the sheriff to summon twenty-four good and lawful men, in order that the jury might be completed out of them. In this stage of the proceeding, the juror Miller who had been already elected and sworn, left the court room, on pretence of sickness, attended by an officer; but so soon as he got out of the courthouse ran off, and though pursued, escaped, and went about four miles into the , country. The sheriff reported the fact to the court, which thereupon awarded an attachment against Miller for the contempt, returnable forthwith. And then the court, with the prisoner’s consent, committed the other ten jurors to the custody of the under sheriffs, to be kept together without communication with any other persons on the subject of the prosecution, and to be brought into court the next morning; and the sheriffs were sworn to perform this duty. The jurors were all brought into court the next morning; and at the same time, the absconding juror Miller, who had been taken upon the attachment, was brought before the court. It was then again demanded of the prisoner, whether he was still willing to be tried by Miller; upon which the prisoner challenged him for cause, and he was set aside, and his name struck from the panel. Two other jurors were then called and elected, and these together with the two jurors who had been elected but not sworn the day before, were sworn, and thus the jury was completed. The trial proceeded; and the jury found the prisoner guilty, assessed a fine upon him of 100 dollars, and ascertained the term of his imprisonment in the penitentiary to be three years.
    The prisoner moved the court for a new trial; and produced the affidavit of one of the under sheriffs, by which it appeared, that Miller was taken upon the attachment, ^brought back and put in the same room with the other ten jurors, who had been put under charge of the sheriffs, about nine o’clock of the night of the 13th October, and kept with the other jurors all night; that in fact he slept in the same bed with one of them. But it appeared by the affidavit of another of the sheriffs, who staid with the jurors in the same room, that during all the time Miller was there with the rest, he the sheriff heard no conversation between Miller and any of the jurors, and no conversation of any of the jurors with the others, on the subject of the prosecution; but Miller slept in the same bed with one of the jurors, and he the sheriff was asleep part of the night while Miller was in the room. The court overruled the motion for a new trial, but ordered the affidavit to be made part of the record; and then proceeded to pass sentence upon the prisoner according to the verdict.
    And now G. N. Johnson, for the prisoner, presented a petition to this court, praying writ of error to the judgment, alleging as errors in the proceedings: 1. That it was not lawful or proper to keep the jurors who were elected and sworn on the 13th October, together with the three others who, though elected, were not sworn. 2. That it was not competent to the court, to discharge a juror who had been sworn (as Miller had been), though challenged by the prisoner; at least, not without discharging the whole panel; for which the petition referred to the provision in the 12th section of the statute 1 Rev. Code, ch. 75. p. 266. “that no exceptions against any juror, on account of this estate, or age, or other legal disability, shall be allowed after he is sworn.” 3. That the motion for a new trial ought to have been sustained: that the strange and improper conduct of Miller, and his association with the rest of the jury afterwards, threw suspicion over the verdict, and vitiated it.
    
      
      Juries — Separation—Effect.—On this question, see the principal case sited in Thompson v. Com., 8 Gratt. 643 (see note); Dilworth v. Com., 13 Gratt. 705; foot-note to Philips v. Com., 19 Gratt. 485; Flesher v. Hale, 32 W. Va. 50. See monographic note on “Juries" appended to Chahoon v. Com., 20 Gratt. 733.
    
   *PER CURIAM.

The decision of chief justice Marshall in Aaron

Burr’s case, “that there was no necessity for delivering the jurymen, who had been or should be sworn, into the custody of the marshal, until the whole number had been impaneled and sworn,” 1 Burr’s trial p. 382, and the opinion of this court in Martin’s case, 2 üeigh 745, are decisive authorities against the prisoner’s application.

CLOPTON, J., dissented, upon the authority of M’Caul’s case, 1 Virg. Ca. 271, 303-6.

Writ of error denied.  