
    *Whitehead v. The Commonwealth.
    January Term, 1870, Richmond.
    1. Criminal Law—Arraignment—Plea—Distinct.— The arraignment of a prisoner and his plea are distinct parts of the proceeding; and therefore upon his arraignment and without pleading he may elect to be tried in the Circuit court.
    2. Two Prisoners Arraigned Together—Separate Pleas. —Two prisoners may be arraigned together. This does not prevent their pleading separately; and electing to be tried separately.
    3. indictments by Grand Jury—Question Whether “True. Bill” Found—How Ascertained.—The record of the court states that the grand jury presented the following indictments as “true bills,” viz. one against M. N., one against &c. setting out eight names, and then one against Thomas and Richard Whitehead, and one against R. H. andG. C. not true bills. Though it is doubtful whether the indictment against Willis and Whitehead, belongs to the first or last class, the court may look to the indictment and the indorsement upon it by the foreman to ascertain the fact.
    4. Statute—Venire Facias—Handatory.—The act, Sess. Acts 1866-67, ch. 208, § 4, p. 932, directs that the writ of venire facias shall command the officers charged with its execution, to summon twenty-four persons freeholders of his county or corporation, “residing remote from the place where the offence is charged to have been committed.” This direction is mandatory, and the writ is defective and should be quashed if it is omitted. And it is not in violation of the bill of rights.
    At the quarterly term of the County court of Chesterfield for March 1869, the record states that the grand jury came into court and presented the following indictments as “True bills,” to wit, one against Marcellus jSTunually, one against Lewis Mason, one against Ben Gray, one against Lawson Burfoot, one against Rachael Carr, one against Daniel Johnson, one against Thomas Brown, one against Lewis Johnson, one against Thomas Willis and Richard Whitehead, and one against R. Harris and Giles Coggins not true bills. Among the indictments which were returned *by the grand jury, is an indictment against Thomas Willis and Richard H. Whitehead for the murder of James Rodgers: but the only record evidence that this indictment was found a true bill by the grand jury is the entry hereinbefore given, and the indictment itself; if that may be looked to on that question.
    At the April term of the court Willis and Whitehead were brought into court, and set to the bar, and the attorney for the Commonwealth called for the arraignment of the prisoners jointly, to which the prisoners by their counsel objected, and moved the court that they might be arraigned separately ; which motion the court overruled; and the prisoners excepted.
    The prisoners were then arraigned jointly ; and refusing to plead to the indictment, elected to be tried before the judge of the Circuit court of the county; which was ordered to be certified to that court. In the Circuit court the prisoners pleaded “not guilty, ’ ’ and elected to be tried separately. And at the June term 1869 of the court, the prisoner R. H. Whitehead having been set to the bar, moved the court to quash the venire facias issued by the clerk; which motion the court overruled; and the plaintiff excepted. The venire facias is set out in the exception, and is as follows: The Commonwealth of Virginia, To the sheriff of Chesterfield county, greeting: We command you that you cause to come before the Circuit court of Chesterfield county, at the courthouse thereof, on the 24th day of June 1869 (special term) twenty-four good and lawful men, freeholders of your county, each one of whom is twenty-one years of age, to recognize on their oaths whether Richard H. Whitehead be guilty of the felony of which he stands indicted or not. And have then there the names of the said freeholders and this writ. Witness, &c.
    Upon the trial the jury found the prisoner guilty of murder in the second degree, and fixed the term of *his imprisonment in the penitentiary at eighteen years; and the court sentenced the prisoner according to the verdict. The prisoner thereuppn applied to a judge of this court for a writ of error to the judgment; which was awarded.
    Crump, for the prisoner.
    Wells, for the Commonwealth.
    
      
      See foot-note appended to Poindexter v. Com., 33 Gratt. 766.
    
   WILLOUGHBY, J.,

delivered the opinion of the court:

The first point in this case arises upon a construction of the “act to revise and amend the criminal procedure.” Section first of chap. 208, page 931, of Sess. Acts of ’66 and ’67. This provides that trials for felony shall be in a County or Corporation court, &c., except that a person indicted for an offence punishable with death, “may, upon his arraignment,” demand to be tried in the Circuit court, &c., and he shall, thereupon, be “remanded for trial in the Circuit court,” &c., and copies of the proceedings in the County court shall be certified to the clerk of the Circuit court.

The second section of that chapter further declares that, under certain circumstances, a person shall be “arraigned and tried.” It is contended that, because the accused did not enter his plea, and refused so to do, and because the court did not thereupon, enter for him the plea of not guilty, according to the third section of this act, the arraignment wa's not complete in the County court, and the Circuit court having jurisdiction only to try, and to try only after the completion of the arraignment, it had not, under such circumstances, jurisdiction of this case. Our attention is called to the fact that the Circuit court has no inherent jurisdiction, and no such jurisdiction as was formerly had by the General court, and still later by the County court; and that it has no jurisdiction except such as is expressly conferred; that the jurisdiction to try felonies having been *taken away from the Circuit court, except in certain cases enumerated by the act under consideration, it follows that its authority is based upon the circumstances attending such excepted cases and upon these alone. I think that these are propositions that may be admitted, and that they are in fact established by a consideration of the history of our courts.

The prisoner is allowed, “upon his arraignment” in the County court to elect in what court he shall be tried. The precise point is at what time is this election to be made; whether before or after pleading. Do the words upon his arraignment mean, at the time of or after his arraignment; and does an arraignment necessarily include the plea? This leads us to enquire what is an arraignment?

Blackstone sayrs, book 4, page 322: “To arraign is nothing else but to call the prisoner to the bar of the court to answer the matter charged upon him in the indictment.” On ^age 324, he says: “When a criminal is arraigned, he either stands mute or confesses the fact, which circumstances we may call incidents to the arraignment, or else he pleads to the indictment, which is to be considered as the next stage of the proceedings.”

A whole chapter is devoted by this author to the subject of arraignment and its incidents. The next chapter is upon the subject of plea and issue. It is evident, therefore, I think, that he regards an arraignment and the plea of the accused as separate stages of the proceeding. The arraignment is the act of the court; the plea is the act of the accused. It is true, that by ' the third section of the act, the court may, upon the refusal of the accused to plead, enter for him the plea of not guilty; but this is done in his behalf. It is an act performed for the accused.

It is true that in the forms of proceedings, what is called an arraignment, generally includes the pleading of the accused; but I think, that the more strict meaning *of the word is confined to the action of the court. It is expressed in Latin, as Lord Hale says, “ad rationem ponere.” And this I think, too, accords more with the general idea of the word arraign, which is regarded as meaning to accuse, to charge, &c. If this be correct, it follows that there is no error in the plea not being put in in the County court. The prisoner is to make the election at the time of his arraignment; or if it should be said after his arraignment it would not necessarily mean after his plea.

Such a construction is plainly the most liberal one for the accused. The election given to him is a privilege. The sooner he is allowed to avail himself of this privilege, the more extended it is. Any other construction would tend to abridge and restrict this privilege. Upon being called upon to plead, there are several courses which he may take. He may move to quash the indictment. He may plead to the jurisdiction in abatement, or a special plea in bar, such as former conviction or acquittal. He may demur, or he may plead not guilty. All these present questions for some court to decide. Right here may be the turning-point of his case. Here may arise the most important questions to be determined. The law gives him the privilege of electing in what court he will be tried upon his arraignment. He may wish to have these important questions determined by the Circuit court; and would it not be depriving him of a liberal construction of this law to say that he shall continue in the County court until the issue is fully made up?

It would seem to me that the prisoner could object with better grace that he is not allowed to plead; that is, to select in what court he might plead. But he is now complaining that he did not plead, when he refused to plead. He complains that the court did not do for him what he refused to do for himself, and what it is apparent he did not wish the court to do for him. This looks ^almost like one seeking to take advantage of hjs own wrong, if it be a wrong.

By construing the word upon, as meaning at' the time of, we give it a signification, which is a very common one, and thus give to the-accused the benefit of a liberal construction of the law in cases generally, whatever may be the effect of such construction in this particular case.

It is claimed that the language of the act restricts the Circuit court to the mere trial of the cause. I think, however, that this construction, if it precludes the accused from the benefit of having the usual incidents of a trial in the Circuit court, is too strict. Such a construction would imply that nothing could be done but by an issue. But suppose the accused pleads in abatement, and then elects to go to the Circuit court, and there his plea is not sustained; or suppose he demurs, and his demurrer is overruled in the Circuit court, what would have to be done? Evidently he would be required to plead again, and this, too, in the Circuit court. He would .have to be arraigned again. To restrict the Circuit court to a mere trial of an issue, in the sense contended for, would render it almost impossible to proceed in many criminal cases.

If these views be correct, I think no substantial error was committed by arraigning the accused jointlj»- with his co-defendant. This did not compel them to plead the same plea. Nor did it compel them to be tried jointly. It would no doubt have been proper to arraign them separately. But in either event, I cannot see how any rights were put in jeopardy -or any harm done. It is not such a substantial error as would compel a reversion of the judgment.

Another ground of error as assigned is that it does not sufficiently appear from the record as is claimed, that an indictment for murder was presented by the grand jury. *The language upon the order book is as follows:

“Ata quarterly court held for Chesterfield county, at the courthouse thereof on the 9th day of March, A. D. 1869, and in the 93rd year of the Commonwealth.

Edward A. Johnson, gentleman, foreman', W. G. Clarke, Joseph D. Ellett, Joseph H. Wilkinson, Sami. Chetham, Joseph H. Rowlett, Ajax Gary, Andrew Howison, JohnW. Lipscomb, Geo. S. Adkinson, Geo. C. Gregory, Joseph Vest, Augustus Talbot, Jno. W. Beasley, Sami. TajTor, Richard Gill, Thos. O. Wilson and Wm. Walker were sworn a grand jury of inquest for the body of this county, and having received their charge withdrew, and after some time returned into court and presented the following indictments as “true bills,” to wit, one against Marcellus Nunnally, one against Lewis Mason, one against Ben Gray, one u against Lawson Burfoot, one against Rachael Carr, one against Daniel Johnson, one against Thos. Brown, Jr., one against Lewis Johnson, one against Thomas Willis and Richard Whitehead, and one against R. Harris and Giles Coggins not true bills, and the jury was adjourned over until to-morrow at 11 o’clock.

It is claimed that it cannot be determined from this to which class the indictment against Richard Whitehead belongs, whether to that of “true bills” or “not true bills.” It is apparent from a fair reading of this that Thomas Willis and Richard Whitehead are included in the same indictment.

The words “one against” are prefixed to each name before these, and between these is only the word “and.” After Whitehead is a comma, and again we have “one against” R. Harris and Giles Coggins, perfectly unbiassed reading of this would, I think, show that the words “not true bills’ ’ appertain only to the last two persons named, though it must be confessed that it is quite obscure and perhaps somewhat ambiguous. A

*In Cawood’s case, 2 Va. Cas. 527, 542, the court say: “We admit that after a grand jury have found a bill and reported it, and their finding- is placed on the record, that the indictment so found and endorsed becomes as much a part of the record as if it were spread in extenso upon the order book; but in order to give it that character we deem it essential that a record should be made of the finding upon the order book. ’ ’

This would seem to imply that if the grand jury present an indictment, and the fact appears from the record that they acted upon it, we may look to the indictment to see what it was and what was the action of the grand jury upon it. The indictment then, though not spread upon the record, is a part of the record: And this, I believe, has been almost the universal usage of the courts of Virginia. It is certainly evident from the record on the order book, that the indictment against Richard Whitehead was presented either as a true bill or as not a true bill. But if such indictment is a part of the record, we may look to the indictment itself, I think, to explain this apparent ambiguity and obscurity. In other words, we may look to the whole record in construing an uncertainty in any part of it. Goodwyn v. State, 4 Smede & Marsh. Miss. R. 520.

If we are permitted then to look to the indictment, as I think we are, there is no difficulty in coming to a conclusion as to whether the indictment against Richard Whitehead comes under the class of “true bills” or “not true bills;” and the endorsement signed by the foreman shows that it belongs to the former.

But it is claimed that the clerk should have further identified this indictment by describing it as an indictment “for murder. ’ ’

If we are authorized to look to the indictment as part of the record, this cannot be a substantial reason for holding that the failure to do so, is error for which *the judgment should be reversed. Suppose these words had been inserted, they would not then have necessarily shown that this indictment is the identical one referred to by such words. The record shows that an indictment was found. This speaks for itself and shows for itself what it is. There would be no more difficulty in substituting one indictment for murder for another for murder, or a defective one for a good one, than there would be in substituting an indictment for manslaughter for the one for murder. It would not be contended, I presume, that either party would be bound by such words; certainly not the accused. If on inspection of the indictment, it should turn out to be totally defective as j an indictment for murder, certainly these ' words would have no bearing whatever to show it to be a sufficient indictment.

The accused would claim, and rightfully, to be governed by the indictment itself, and I think the Commonwealth must have the same privilege. This view is fully substantiated by the case of Goodwyn v. The State, above referred to, in which case there was no description whatever of the offence in the minutes of the court.

In Cawood’s case there was no reference whatever to any indictment against the accused. There was, therefore, no evidence whatever, that such indictment had been presented in open court, or that it was ordered to be made a part of the record. An indictment to be complete must be presented in open court. In Cawood’s case there was no evidence whatever, that this essential fact existed, or that any action whatever was taken upon it. On the contrary, the record in that case expressly negatived such fact. No action by the court was taken upon it. But in this case, there is evidence that some action was taken, and the only difficulty is to determine what such action was; which, however, is solved by an inspection of the whole record. Even in Cawood’s -x-case the decision was by a divided court; Judges Barbour and Daniel dissenting; though we do not dispute its authority on that ground.

Another error assigned is the denial of the Circuit court to quash the venire facias on motion, made on the ground that it was not in conformity to the law. This venire facias is in these words, to wit: “The Commonwealth of Virginia to the sheriff of Chesterfield county, greeting: We command you that you cause to come before the Circuit court of Chesterfield county at the courthouse thereof, on the 24th day of June 1869 (special term), twenty-four good and lawful men, freeholders of your county, each one of whom, is twenty-one years of age, to recognize on their oaths, whether Richard H. Whitehead be guilty of the felony of which he stands indicted or not. And have then there the names of the said freeholders and this writ. Witness,” &c.

The statute already referred to, section 4, chapter 208, page 932, Acts of 1866-7, requires that this writ “shall command the officer charged with its execution to summon twenty-four persons freeholders of his county or corporation residing remote from the place where the offence is charged to have been committed,” &c.

The language of the acts relating to this subject previous to 1846, 1 R. C., p. 601, sec. 9, is, “Freeholders of his county or corporation of the neighborhood of the place where the fact shall have been committed. ’ ’ The language of the act of February 24, 1846, Sessions Acts, p. 62, and again of 1847-8, page 148, sec. 5, is, who reside remote from the place where the offence is charged to have been committed. ’ ’

The Revisors of the Criminal Code in 1849 recommend these words in the act of 1846 and 1847-8 to be stricken out, and report the section with such words stricken out, remarking, that thus all foundation is taken away, for the objection that the section is in conflict with the Bill of Rights. (Report of Revisors, page *1018.) The Bill of Rights declares that the accused is. entitled to a speedy trial by an impartial jury of twelve men of his vicinage. But the legislature disregarded this recommendation of the revisors, and directed the words to be again inserted; and so they have continued to 1867, and were then again upon a revision of the criminal procedure re-enacted.

This history shows that the legislature did not act unadvisedly upon this subject; that their attention was called to the apparent conflict with the Bill of Rights; but notwithstanding this, and in opposition to the recommendation of the revisors; they deliberately and advisedly inserted these words. In 4 Bl. Com. 350, it is said the sheriff of the county must return a panel of “jurors liberos et legales homines de vicineto; that is, freeholders without just exception, arid of the visne or neighborhood, which is interpreted to be of the county where the fact is committed.” It is in accordance with this that the accused is entitled by the Bill of Rights to “an impartial jury of his vicinage ;”that is, to the jury of his county. The language of the act, requiring persons remote from the place where the offence is charged to have been committed, then, is not really in conflict with the Bill of ■ Rights; but means in a remote part of the county. Such a construction is not an unreasonable one, and relieves us from charging the legislature with having deliberately violated the Bill of Rights—an interpretation which ought to be given to any act of the legislature, if consistent and reasonable.

This history of the legislation upon the subject shows us also that this requirement was deemed an essential one. They command not that this shall be one of the qualifications of a juror, not that the sheriff shall summon such men, but that “the writ itself shall command the officer to summon such men. This, it seems to me, constitutes an important difference between our statute and those upon which decisions have been made in *some of the States, holding that the words, “good and lawful men” in the writ of venire facias, imports men who have the requisite qualifications. Did not the statute expressly command, that the writ itself shall contain these words, “residing remote,” &c., and were this a qualification of a juror otherwise defined, I should be inclined to hold that the words, “good and lawful men” in the venire, were sufficient.

As has been well said, it is often the most difficult thing that arises in the construction of statutes, to determine whether provisions of time and form are directorj' or mandatory. Sedgwick says, in his work on Statutory and Constitutional Law, page 368, that it depends upon whether a strict compliance with them appears essential to the judicial mind. If so, they are mandatory.

It does appear to me, on looking at the history of the legislation upon this subject, that this requirement to have these words in the writ itself, was deemed essential in the legislative mind; and if so, it must be so in the judicial mind. The object of this must have been to obtain men upon the jury who are supposed not to be so immediately familiar with the fact charged in the indictment, and consequently more unbiassed and better qualified to give an impartial decision. With this view, it must have been intended to confer upon the accused a right or privilege; and therefore, if there is reasonable doubt upon the construction, the accused is entitled to the benefit of such doubt.

In the Commonwealth v. Wash, 16 Gratt. 530, it was held that a writ of venire facias, which directed the officer to summon freeholders, who owned “property to the value of one hundred dollars at least,” ought to have been quashed on motion, as it contained a qualification which the law did not require. It was there held, that it was not material to the question whether this mandate of the writ was regarded by the officer or *not. Nor was the accused required to show that he had been injured by the error of the officer issuing the writ. It is true, that in that case the error was, that it contained more than the law allows, and in this case it contains less. But the principle of the case seems to be, that the writ itself must be one according to the law; that is, .that the requirements of the writ are essential, and cannot be dispensed with, though the officer might 'in fact have summoned only the proper persons.

It follows, therefore, that the court erred in denying the motion to quash the writ of venire facias; that the judgment must be reversed, and a new trial awarded to the accused.

Judgment reversed.  