
    *Jackson v. The Commonwealth.
    January Term, 1873,
    Richmond.
    i. Criminal Law — Indictment for Murder —Right to Examination before a Justice. — A jury of inquest find that the deceased was killed by J and the justice who acted as coroner, issues process, upon which J is committed to prison. The grand jury in the County court find an indictment against J for murder, and he is brought into court and arraigned, and on his arraignment elects to he tried in tne Circuit court. In the Circuit court J moves to quash the indictment because he had not been sent before a justice for examination; and that motion being- overruled, and the cause continued to the next term on his motion, he at the next term flies a plea in abatement to the indictment. on the ground that he had not had the benefit of an examination before any justice of the peace or other legally authorized officer for commitment To this plea the attorney for the commonwealth demurs, and the demurrer is sustained.
    Heed:
    1. Same — Same-Same.—J was not entitled to be sent before a justice for examination.
    2. Same — Same— Same — Waiver— Quaere.— Qu^re : If J was entitled to such an examination, he had not waived it, by electing to be tried in the Circuit court, and not making his motion until he was at the bar of that court.
    2. Venire — Opinion Formed — Competency.—If a venire man has formed, and still more, if he has formed and expressed a decided opinion as to the guilt or innocence of the accused, no matter on what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumour or otherwise, he is an incompetent juror to try the case. If on the other hand, his opinion is merely hypothetical, he is not incompetent on that ground.
    *3. Same — Opinion Formed from Evidence on Former Trial — Competency.—If a venire man has formed an opinion as to the guilt or innocence of the accused from having heard the evidence on a former trial or examination of the case, it would be difficult if not impossible to regard such opinion otherwise than as decided or substantial, within the meaning of the rule; and he would generally, if not always, be considered an incompetent juror? even though he might think and say that he could give the accused an impartial trial.
    4. Same — Opinion Formed from Rumor — Presumption-Competency. — If a venire man has formed an opinion of the guilt or innocence of the accused from mere rumour, the presumption, in the absence of evidence to the contrary, is, that such opinion is merely hypothetical; and will be so considered even though he speaks of it as a decided or substantial opinion, if he says he has no prejudice against the accused, and thinks he can give him a fair and impartial trial. But if the court be satisfied, either from the venire man’s own statement or otherwise, that the opinion is in fact decided or substantial, he will be an incompetent juror.
    5. Same — Competency—Opinion of the Court. — In all cases great weight is justly due to the opinion of the court before whom the venire men are questioned and examined in regard to their competency as jurors.
    6. Impeachment of Witnesses — Prior Inconsistent Statements —Laying the Foundation. — The testimony of witnesses examined before a jury of inquest, and committed to writing, cannot be used to impeach the evidence given on the trial of the prisoner, unless their attention has been called to it and to any discrepancies between that and their evidence.
    
      This is a writ of error to a judgment of the Circuit court of the county of Alexandria pronounced on the 16th day of November 1872, convicting William Jackson of murder in the first degree, and sentencing him to be hung therefor. . The accused was indicted at a County court held for said county on the first day of April 1872, for the murder of Mary Jackson, who was his wife. On the 17th day of February 1872, an inquisition was taken in the said county before F. P. Crocker, a justice of the peace acting as coroner of said county, upon the view of the body of the said Mary Jackson then and there lying dead; and the jurors found by *their verdict that the deceased came to her death from a fracture of the skull produced by a blow inflicted by the said William Jackson', during .the night of Thursday, February ISth, 1872. The said justice and acting coroner returned to the said County court the inquisition, written testimony, and recognizance of witnesses, taken by him, and issued a warrant against the said William Jackson, under which he was apprehended and committed to the jail of said county; where he remained until the said first day of April 1872, when an indictment was found against him as aforesaid, by the grand jury of said county. Though he was then in jail under the warrant aforesaid, a capias was awarded against him forthwith to answer the said indictment; which being executed; and the accused being set to the bar and arraigned upon the said indictment, he, without pleading thereto, demanded’ to be tried for the offence aforesaid before the Circuit court of Alexandria county. Whereupon it was ordered by the said County court, that he be remanded to the said Circuit court to be tried for the offence aforesaid; and he was remanded to jail, and the witnesses for the commonwealth were recognized to appear before the said Circuit court on the first day of the next term thereof, as witnesses aforesaid. On which day, to wit: the 20th day of May 1872, the accused moved the said Circuit court to continue the cause till Wednesday next thereafter; which was accordingly done. On the latter day, to wit: the 22d day of May 1872, he moved the court to quash the proceedings against him, upon the ground that he had not been examined before a justice of the peace; which motion the court overruled. The accused then moved the court to quash the proceedings, upon the ground that the clerk had not issued a proper venire facias; which motion the court also overruled. And then the accused moved the court to continue the *cause on the ground of the absence of a material witness; and the court accordingly continued the case till the first day of the next term; “on account,” as stated in the order, “of its being a case in which the life of the accused was’ involved, and the court being willing to afford him every facility of defence. ’ ’
    At the next term of the said court, to wit: on the 11th day of November 1872, the accused filed a plea in abatement to the said indictment, upon the ground that he had not the benefit of an examination before any justice of the peace, or other legally authorized officer for commitment, bail or discharge; to which benefit he claimed to be entitled. There was a demurrer to the plea, &c., joinder in demurrer; and the court sustained the demurrer and overruled the plea. The accused was then arraigned upon the indictment and pleaded “not guilty;” and issue was thereon joined. The case having been heard, the accused was found guilty of murder in the first degree; and judgment was ’’pronounced accordingly as aforesaid, on the 16th day of November 1872.
    In the progress of the prosecution in the Circuit court, three bills of exceptions were signed by the court at the instance of the accused; which, in the order in which the questions arose, though not in the order in which the bills are copied in the record, are as follows: The first states, that upon the arraignment of the accused in the County court, he, without pleading, elected to have his case removed to the Circuit court; which was done; that upon the trial before the Circuit court, and before he had pleaded to the indictment, he moved to quash the indictment on the same grounds set out in the special plea aforesaid. But the court overruled the motion and refused to quash the indictment; to which he excepted. The second bill states, that on the trial,-
    Graham, a venire man, sworn on his voir dire, said “that*he had heard the subject of the trial spoken of in the county; that some of the persons from whom he had heard the relation of the evidence, were present at the examination upon the coroner’s inquest; that the persons he had heard speak of the evidence were those whose statement of the evidence he believed to be entitled to full credit, and that he believed what they said was a true narrative of what was testified before the coroner; that upon this he had expressed and formed an opinion with regard to the guilt or innocence of the prisoner; that such an opinion was not a decided one; that he believed that notwithstanding the formation and expression of such opinion, he could, as a juror, do justice to the prisoner; that he felt no prejudice against the prisoner ; and that he believed that he would be able to render his verdict upon the evidence at the trial, uninfluenced by his preconceived opinion.” This juror was challenged for cause by the accused, and the challenge was overruled by the court; to which the accused excepted.
    The third and last bill states, that on the trial, the testimony of the witnesses taken down at the inquest of the coroner and properly authenticated, was excluded from the jury when it was sought to be submitted' during the argument of the cause, and not before, for the purpose of impeaching the credibility of the witnesses. Upon the examination of the witnesses on the trial, their testimony contained in the written evidence taken before the coroner, was not read to them; but they were especially interrogated in regard to it. One of the witnesses, Caroline Coleman, testified that she had given evidence before the coroner’s inquest; that she remembered what she then stated; that she had thought much, and considered on the subject since; that her memory was accurate and correct. But the court being of opinion that x'the attention of the witnesses should have been called during their examination to the discrepancies, if any, between their statements on the trial, and those made by them before the coroner, refused to allow the said record of their testimony to go before the jury as evidence for any purpose, when offered by counsel for prisoner during his closing argument in the case, or to permit him to comment thereon; but upon the motion of the attorney for the Commonwealth, excluded the same; to which ruling of the court the prisoner excepted.
    Kent & Neale, for the prisoner.
    The Attorney General, for the Commonwealth.
    
      
      Venire — Opinion Formed — Competency.—There are many cases in Virginia as to the competency or incompetency of jurymen on account of previously formed, or previously formed and expressed, opinions concerning the guilt or innocence of the prisoner, and, as said in the principal case, it would be difficult to adduce?any definite rules on the subject.
      A juror, who having heard the testimony of a witness in the cause, and then formed an opinion on it, and was doubtful whether he had expressed the opinion or not. though he thought it most probable he had expressed it, but declared that at the time of the trial he had no prejudice against the prisoner, or his cause, and that he could, as he believed, give the prisoner as fair a trial as if he had not heard any thing on the subject, is an impartial juror, and a challenge against him for cause ought to be overruled. Pollard v. Com., 5 Rand. 659.
      On a trial for murder, two jurors are severally examined on voir dire. 1. One states, that he was not present at the examination of the prisoner before the hustings court, and has heard no statement of the evidence from any witness or any person who was present; that he has heard the case spoken of in the town, and rumors in regard to its circumstances, upon which he has expressed no opinion, though he believes those rumors to be true, and if they should turn out upon the trial to be true, he has a decided opinion in regard to the case; but he feels no prejudice, and is satisfied he shall be able to decide the case upon the evidence which may be given in, uninfluenced by the rumors he has heard; that the opinion he has formed was, that if the prisoner had stabbed the deceased under the circumstances which he had heard, he ought to be punished. 2. The other juror states, that he has made up no decided opinion; that he has heard a part of the evidence of one witness, and formed an impression, and if the balance of the testimony should run in that way, that impression would be confirmed; that as far as the evidence went, he has a decided opinion, if the rest should not run against it; but that he has no prejudice, has not expressed any opinion, and is prepared to decide the case according to the evidence which may be given in, uninfluenced by the portion of evidence he has heard. Held, both the jurors are competent. Moran v. Com., 9 Leigh 651.
      The entertaining a decided opinion of the prisoner’s guilt formed on the testimony as published in the newspapers, is not a valid objection to a juror, if he thinks he can discard his opinion, and that it would notinfluence his judgment; and that he could give the prisoner a fair trial according to the law and the evidence submitted to the jury. Smith v. Com., 7 Graft. 593.
      A venire man when called, stated, “That he had not heard any of the evidence nor had he heard any report of it from those who had heard it; but from the rumor of the neighborhood he had formed an opinion which was at the time he spoke existing on his mind, and which he should stick to, unless the evidence should turn out to be different from what rumor had reported it to be. That he had no prejudice nor partiality for or against the prisoner, and believed he could give him a fair and impartial trial according to the evidence that should be given in.” He is a competent juror, and challenge of him for cause by the prisoner was properly overruled. Clore's Case, 8 Graft. 606.
      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 himself under the circumstances. He 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 spoken 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. Montague’s Case, 10 Gratt. 768.
      A person called as a juror in a trial for murder, says in answer to a question — I have expressed an opinion from what I have heard. What I have heard was not from any witness. My opinion was not a fixed one. I think I can give the prisoner a fair trial without reference to the opinion I have expressed. He is a competent juror. Little’s Case. 35 Gratt. 931.
      In a trial for murder, a juror on voir dire said tbat newspaper accounts bad made an impression on.bis mind, buttbat “it would yield to evidence,” and that be could give prisoner a fair and impartial trial. A second said the same, and tbat be would not be willing to act on those accounts, but tbat it would take evidence to remove the impression. A third said be bad not formed “a decided opinion,” but an impression tbat “would be right bard to get over, but tbat it would not require sworn statements- to remove it. "Held, these jurors were competent.” Hall v. Com., 89 Va. 171, 15 S. E. Rep. 517.
      See Epes’ Case, 5 Gratt. 676, for opinion formed and expressed which will not disqualify juror in a trial for murder.
      See foot-note to Shinn v. Com., 32 Gratt. 899, where there is a collection of cases holding tbat opinions formed by jurors were not such decided opinions as to disqualify them from serving, and also a collection of cases holding jurors disqualified because of previously formed opinions.
      See also, Smith’s Case, 3 Va. Cas. 6; Kennedy’s Case, 2 Va. Cas. 510: Poore’s Case, 2 Va. Cas. 474; Hughes’ Case, 5 Rand. 655; Osiander’s Case, 3 Leigh 780.
    
   MONCURJ3, P.,

after stating the case, proceeded:

Four errors are assigned in the proceedings and judgment aforesaid: 1st. That the court erred in refusing to quash the indictment, or to order the prisoner to be carried before a justice of the county, and to summon the witnesses, upon whose information the indictment was made, to appear and testify before the justice: 2d. That the court erred in sustaining the demurrer to the plea in abatement, which presented the same question as that set out in the first assignment of error: 3d. That the court erred in overruling the challenge for cause to the venireman Graham: 4th. That the court erred in excluding from the jury, the written testimony of the witnesses, or of the witness Caroline Coleman, taken down and properly authenticated at the inquisition held by the coroner, when offered in evidence to impeach the witnesses. We will consider these errors in the order in which they are assigned.

The 1st and 2d present the same question ; and we will therefore consider them together. That question is, that the accused was entitled, as matter of right, to demand 'x'that he be carried before a justice of the county to be examined for the said offence, before he could be tried, or even effectually indicted therefor; and that he was so entitled, even though he had been actually indicted for the offence in the County court; and upon his arraignment on the indictment in that court, had thereon demanded to be tried for the offence before the Circuit court; and even though he asserted his supposed right, for the first time, in the Circuit court, when set to the bar of that court, according to his demand to be tried therein.

The question whether, under the act passed April 27, 1867, entitled “an act to revise and amend the criminal procedure,” (acts of assembly, 1866-67, p. 915,) a person indicted for felony in the proper court to try him for the offence, but, when indicted, not being in custody, nor having been arrested or examined by a justice, should be arrested and sent before a justice to be examined; or whether he may be taken on a capias, and tried upon the indictment, without an examination by a justice, was 'very fully considered by this court in Cha-hoon’s case, 20 Gratt. 733; and three of the judges delivered elaborate opinions upon it. The judgment of the court below upon the question, was therefore, in that case, affirmed, and Chahoon was tried and convicted, without having been previously ex■amined by a justice. When that decision was made, the legislature was in session; •and there have since been two sessions of the legislature, including the present — and .yet there has been no change of the law made, and no act passed declaratory of the 'meaning of the legislature in the existing law on the subject. The presumption, therefore, is, that the legislature is satisfied with the construction thus placed upon the law, and is disposed to acquiesce therein. We consider it important that the construction of the law should be settled; *more important indeed than that it should be settled in one way rather than the other; especially as the legislature can, at any time, change the law, if deemed proper, and as may be deemed proper. If it be deemed advisable to have a preliminary examination in cases of felony, the legislature can easily prescribe how, when, and by whom the examination is to be made, and what shall be the effect of it — whether it shall be made by a justice of the peace, or two or more justices, or by the county or corporation court, or the judge thereof in vacation, or otherwise. We are, therefore, of opinion, without reviewing and reconsidering the question which was so much considered in Chahoon’s case, as aforesaid, that the decision of this court in that case, though by a divided court, should, for the reasons and under the circumstances aforesaid, be accepted and regarded as a decision and settlement of the question as to ihe proper construction of the said act.

Such being our opinion upon the general question as to the necessity of a preliminary examination by a justice of the peace in any case of felony, it is unnecessary to enquire, whether if such necessity exists in any case, it existed in this case; in which the accused was arrested and committed for the offence by the warrant of a justice of the peace and the acting coroner in the case, and was actually in the jail of the count}' under such arrest and commitment when -the indictment was found against him in the County court; or whether, if he even had a right to demand that he be carried before a justice of the county to be examined for the said offence, he did not waive that right by demanding in the County court to be tried for the offence in the Circuit court, instead of demanding to be carried before a justice for examination as aforesaid; and by failing to make such *latter demand,, until he was set to the bar of the Circuit court under his demand to be tried therein.

We are, therefore, of opinion that the Circuit court did not err in refusing to quash the indictment, or to order the accused to be carried before a justice of the county for examination; nor in sustaining the demurrer to the plea in abatement as aforesaid.

The 3.d assignment of error presents the question, whether the venireman Graham was a competent juror.

There is no question, perhaps, about which there has been more apparent conflict of decision in this State, or in regard to which it is more difficult to derive from our many cases on the subject any definite rules which will apply to all cases that may arise. The object of the law is, to secure to every man who is charged with a criminal offence, a trial by an impartial jury. And this rule has been established by the cases, if no other, that if a venireman has formed, and still more if he has formed and expressed, a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumor or otherwise, he is an incompetent juror to try the case; and if, on the other hand, his opinion be merely hypothetical, he is not incompetent on that ground. The difficulty is in determining, in any given case, whether the opinion be decided or substantial or merely hypothetical, there being in almost every case some peculiarity of circumstance. And the desire to remove or lessen this difficulty by laying down certain other rules for our guidance, has been the fruitful source of the apparent conflict in many of the cases. Thus, if a venireman has formed an opinion as to the guilt or innocence of the accused from having heard the evidence on a former trial *or examination of the case, it would be difficult, if not impossible, to regard such opinion otherwise than as decided or substantial, within the meaning of the rule; and he would, generally, if not always, be considered an incompetent juror, even though he might think and say that he could give the accused an impartial trial. So, on the other hand, if a venireman has formed an opinion as to the guilt or innocence of the accused, from mere rumor, the presumption, in the absence of evidence to the contrary, is, that such opinion is merely hypothetical, and will be so considered, even though he speak of it as a decided or substantial opinion, if he says he has no prejudice against the accused and thinks he can give him a fair and impartial trial. But if the court be satisfied, either from the venireman’s own statement or otherwise, that the opinion is in fact decided or substantial, he will be an incompetent juror. There are intermediate cases which often give rise to difficulty on this subject. The venireman may have formed an opinion from having heard a part only of the evidence on a former trial; or from having heard the whole or part of the evidence given on a former trial, through persons who were present, in whose veracity and accuracy he may have more or less confidence; or from having read an account of such evidence in a newspaper. We cannot lay down any rule for the government, of such cases, except the general rule before stated; and the court must determine, as best it may, whether the opinion be decided or substantial, or merely hypothetical. It would be dangerous to lay down a rule; and no case has ever decided, that a venireman, who has formed an opinion from accounts received from witnesses oat of coart, and still less from accounts received from others, as to statements made by witnesses, either in or oat of court, is therefore necessarily an incompetent juror, *even though he may regard the persons from whom he received his information as persons of general veracity and accuracy, and may credit what he has heard from them. We know that witnesses who make statements oat of court, of transactions about which they may have testified in court, still more persons who profess to detail what they may have heard in or out of court, often speak carelessly, and generally omitting particulars which may be very material. And we know that those who listen to them, often listen carelessly; and though they almost always form some impression or opinion of the case from what they hear, yet that opinion is not always, and perhaps not often, decided or substantial, in the meaning of the rule aforesaid. The court mast determine that question in all such cases, in view of all the circumstances.

There is nothing in the decision of Clore’s case, 8 Gratt. 606, which is in conflict with what has been said; though there are expressions in that case which may seem to be' so. We need 'not say that we have the highest respect and reverence for the memory of the great Judge, (fiomax,) who delivered the opinion of the court in that case; and it is certainly a very learned and philosophical opinion. But the opinion of every court must be read and construed in reference to the decision of the court. So read and construed, we entirely approve the opinion of the court in Clore’s case; in which it was held that the venireman Huffman was a competent juror. He stated “that he had not heard any of the evidence, nor had he heard any report of it from those who had heard it; but from the rumor of the neighborhood he had formed an opinion, which was, at the time he spoke, existing on his mind, and which he should stick to, unless the evidence should turn out to be different from what rumor had reported it to be. That he had no prejudice nor partiality for or against the prisoner, and believed *he could give him a fair and impartial trial, according to the evidence that should be given in.” Some of the observations of the court in regard to the competency of the said juror, are very appropriate to the present occasion. After saying that none are so apt to form opinions upon what they may have heard that is material in the case, than those who are the most intelligent, discreet and upright, and at the same time, the most discriminating ; such as are, of all the community, the most fit to sit in trial upon the criminal, the court thus proceeds: “If they are disqualified as jurors, then those best qualified will be excluded from passing between the Commonwealth and the prisoner, in cases where vindication of guilt or innocence will be most vital. Courts should be careful in laying down rules as to the qualification of jurors, which will throw jury trials, and the administration of criminal justice, into the hands of the most senseless and ignorant and least competent ■ to pronounce a just and legal verdict.”

Observations equally strong and appropriate on this subject have been made by the court in other cases. In Moran’s case, 9 Leigh 651, which was decided by a very able court consisting of fifteen judges, the opinion of the court was delivered by Summers, J. It thus proceeds, on the subject we are now considering: “This court is unanimous in the opinion that the prisoner’s challenges for cause to the jurors, H. and T. were properly overruled. Those jurors entertained no ill will against the prisoner, or prejudices by which their minds might have been influenced in trying his cause. They had heard the reports of the occurrence, and one of them a part of the evidence. Their minds had necessarily come to some conclusions, dependent however on the accuracy and fullness of the reports and statements which had reached them; and they were each satisfied *that they could pass fairly and impartially between the prisoner and the commonwealth. This, we think, was all that the most scrupulous regard to public justice, and the rights and safety of the prisoner required. When atrocious acts are committed, thej” necessarily become the subjects of conversation and remark, leading to impressions and opinions favorable or unfavorable to the party accused: bu when such opinions have not impressed the mind with strong and decided conviction, by which the justice and fairness of the juror’s decision upon the evidence may be influenced, we think that no disqualification is produced. Sustaining challenges to jurors for favor on slight grounds, tends to place the administration of public j ustice in the hands of the most ignorant and least discriminating portion ot the community, by which the safety of the accused may be endangered, and the proper administration of the laws put to hazard; and we are therefore not disposed to enlarge the grounds of challenge beyond those properly deducible from the cases heretofore decided. ’ ’

Besides the cases before referred to, the following seem to be the principal ones on the subject in our reports; many of them being referred to and commented upon by the learned counsel for the plaintiff in error. Lithgow’s case, 2 Va. ca. 297; Sprouce’s case, id. 375; Pollard’s case, S Rand. 659; Mendum’s case, 6 Rand. 704; Osiander’s case, 3 Leigh 780; Maile’s case, 9 Leigh 661; Armistead’s case, 11 id. 657; McCune’s case, 2 Rob. R. 771; Eppe’s case, 2 Gratt. 676; Smith’s case, 6 id. 696, and 7 id. 593; Wormley’s case, 10 id. 658; Montague’s case, id. 767; and Bristow’s case, 15 id. 634.

We have examined all the cases, and according to the rule laid down or recognized in all of them, the venireman Graham in this case was a competent juror, not having formed a decided or substantial opinion as *to the guilt or innocence of the accused; his opinion on that subject, so far as he had formed one, being- in fact only h3'pothetical. He was not present when the coroner’s inquest was taken, and heard none of the evidence given on that-occasion. He .did not even converse with any of the witnesses who were then examined. Some of the persons from whom he had heard the relation of the evidence were present at the examination upon the said inquest. He believed the statement of the evidence, made to him by the’persons he had heard speak of it, to be entitled to full credit; and that what they sáid was a true narrative of what was testified before the coroner; and upon this he had formed and expressed an opinion with regard to the guilt or innocence of the accused. But he did not say that such opinion was a decided one. On the contrary he expressly said that it was not a decided one; that he believed, notwithstanding the formation and expression of such opinion, he could as a juror, do justice to the accused; that he felt no prejudice against him; and that he believed he would be able to render his verdict upon the evidence at the trial, uninfluenced by his preconceived opinion. In some of the cases referred to, the venireman whose competency was in question, spoke of his preconceived opinion as being decided ; in some of them it was formed, in art at least, from his having heard a part of the evidence given at a former trial; and in several, if not most of them, the evidence tending to show that such opinion was decided, was much stronger than it was in this case, if it can be said that there was any such evidence in this case; and yet it was held that such opinion was not decided within the meaning of the rule, but only hypothetical, and that such veniremen were competent jurors. Without setting out a statement of the facts in ^regard to the opinions of these different veniremen, we refer to the cases themselves, in which those facts can readily be seen; and besides the cases of Moran and of Clore, to which we have already specially referred, we also refer specially to Pollard’s case, Osiander’s case, Maile’s case, Armistead’s case, Eppe’scase, (a strong one,) Smith’s case, (two cases) and Wormley’s case, ubi supra. We call special attention to the opinions of the court delivered by Scott, J., in Osiander’s case, and by Heigh, J., in Eppes’case. We all know how great were the learning and experience of those judges, and indeed of the whole court of which they were members, in the criminal law and practice of the State. In all cases great weight is justly due to the opinion of a court before whom veniremen are questioned and examined in regard to their competency as jurors. Montague’s case, 10 Gratt. 767. That court, which sees, hears and knows the venireman, can much better judge of his fitness to be a juror than we can.

We are, therefore, of opinion, that the venireman Graham was a competent juror in this case.

The 4th and only remaining assignment of error presents the question, as to the competency of the testimony of the witnesses taken down at the inquisition held by the coroner, when offered in evidence to impeach the testimony of the said witnesses on the trial.

Nothing was said about this assignment of error in the argument, and it seems to have been abandoned. At all events we think it is not well founded, for reasons which sufficiently appear in the bill of exceptions taken to the ruling of the court excluding the impeaching testimony from the jury. The said testimony was not offered by the counsel for the accused until during his closing argument in the case; and the attention of the witnesses was not called during their examination to the discrepancies, if any, between their statements on the trial and those made by them before the coroner. That their attention should have been so called, in order to make the latter statements admissible as impeaching testimony, even if offered in due time, see 1 Greenleaf on Ev., § 462, and the note. See also Unis v. Charlton’s adm’r, 12 Gratt. 484.

Upon the whole, we are of opinion that there is no error in the judgment, and that it be affirmed. And as the day fixed for the execution of the sentence of the court below has already passed, the cause must be remanded to the said court in order that another day may be fixed for that purpose.

Christian, J.,

said that on the question of the righf of the prisoner to be examined by a justice, he had concurred in the opinion of Staples, J., in Chahoon’s case. He had not changed his opinion on that question; but acquiesced in the decision in this case; and the prisoner had waived his right to such an examination, if he had it.

STAPEES, J., concurred in the decision,' because he thought the prisoner had waived his right to an examination by a justice.

ANDERSON, J., concurred in the opinion of Mon'cure, P. Botlldin, J., dissented on the first point.

He was of opinion that the prisoner had a right to be examined by a justice, and that he had not waived it. He

also dissented as to the juror Graham; not as to the law as stated by Moncure, P., but upon the facts as applicable to the law».

Judgment affirmed.  