
    *Bennett v. Commonwealth.
    December. 1837.
    Murder — Sufficiency of Evidence. — Case in which a conviction of murder in the first degree was held to be well warranted by the evidence.
    Same — New Trial — Aiter-Discoveretl Evidence. — After a verdict of guilty on an indictment for murder, prisoner makes affidavit that T. C. is a material witness for him in the prosecution; that he was not summoned to attend the trial, because prisoner was not then informed that he knew anything relating to the aflair; and that prisoner considers that his testimony would have an important effect, on a subsequent trial of the cause: and oil this affidavit, prisoner founds a motion for a new trial, which the court overrules: Hki.u, the new trial was properly refused.
    Criminal Law -Custodian of Jury — Oatii—Record.— The sheriff is ex officio bound to keep the iury when adjourned in a criminal cause, and it is not indispensably necessary that he should be sworn; but if it were necessary to swear him, it would be presumed that he was sworn, in a case where the record does not shew the contrary.
    Petition for writ of error to judgment of the circuit superiour court of law and chancery for Pittsylvania county.
    The petitioner, William Bennett, was indicted and tried in the circuit court, at October term 1837, for the murder of Joel H. Echols. The jury found him guilty of murder in the first degree, and the court sentenced him to be hanged.
    On the day of the arraignment, a jury could not be had; six jurors only were sworn. On the next day, the jury was completed and the evidence heard; on the third day, the cause was argued : and on the fourth.day, the jury rendered their verdict. The record states, that on each day the jurors were committed to the custody of the sheriff, “who is directed to attend and keep them together in one of the jury rooms, without communication with any other person, and to cause them to appear here tomorrow.” But in no instance is it stated, that the sheriff was sworn to the performance of that duty.
    *After the verdict was rendered, the prisoner made two several motions for a new trial, both of which were overruled; and in each case a bill of exceptions was filed. The first motion was founded on an affidavit made by the prisoner before a justice of the peace, on the 26th of October (the day the verdict was rendered) that Thomas Cook was a material witness for him in the pending prosecution; that he was not summoned to attend the trial, because the prisoner was not informed, at the time, that the said Cook knew anything relating to the affair; and that the prisoner considered that Cook’s testimony would have an important effect, on a subsequent trial of the cause.
    The other motion for a new trial was made on the ground that the verdict was not warranted by the evidence. The following were certified as the facts proved in the cause.
    Ten or fifteen days before the 10th day of August 1837, the prisoner, together with Churchill Dalton and others, was passing along the lane of one George, near his house, in the night, when the said George, standing within ten yards of the prisoner and said Dalton, shot off a gun in the direction of the prisoner and Dalton ; whereupon the prisoner exclaimed, “If you have not shot, do not shoot: it is William Bennett going to mill.” George replied, he did not care who it was, he meant to shoot Churchill Dalton whenever he went that road; and called for another gun, which he fired in the direction of the company. In consequence of this transaction, Churchill Dalton obtained a peace warrant against George, returnable at Berger’s store on the 10th day o.f August 1837, in which Bennett the prisoner was a witness for the commonwealth. On the morning of the 10th day of August aforesaid, the prisoner applied to William Dalton for permission to grind his scissors, which was granted; and the prisoner accordingly ground a coarse country-made knife, with a blade five and one ^eighth inches in length, about an inch wide in the blade, tapering towards the point, and appearing to have been recently made, having a coarse wooden handle; which knife the prisoner called his scissors, in the presence of Churchill Dalton, who turned the grindstone for him. The prisoner reached Berger’s store about ten o’clock on the 10th day of August aforesaid. The prisoner was fond of drink, and commenced drinking shortly after getting to the store, and drank frequently in the course of the day. Date in the evening of the last mentioned day, the prisoner was in the yard of Berger’s store, near the storg, talking in a loud voice, occasionally mentioning the name of George; who, standing near, observed, those words were intended for him, but he should take no notice of them.
    At this time the deceased, Joel H. Echols, rode into the yard of the store, alighted from his horse, which he suffered to go loose, and said in a familar manner to the prisoner (who had once been his father’s miller) “What are you making all that noise for? hush it.” The prisoner then said, “I suppose you have been killing Billy Graves’s negroes.” (The deceased had been attending the negroes of the said Graves, as a physician.) Deceased said, “I suppose so;” and turned from the prisoner, and walked into the store room. After the deceased left the prisoner and the witness, prisoner observed to witness, that old mr. Schols, the father of deceased, was a fine old man, but deceased was ‘‘a poor, drunken, trifling fellow, anyhow;” which words were unheard by deceased. At the time when the prisoner said to deceased that he had been killing Graves’s negroes, neither, in the opinion of the witness, was angry with the other. Soon after the prisoner had made the observation to the witness, that the deceased was “a poor, drunken, trifling fellow, anyhow,” witness went into the store room where the deceased was. Immediately thereafter the prisoner followed, and the first *conversation the witness heard (though he was not positive that he heard the commencement of it) between the prisoner and the deceased,-.--the deceased then leaning against a flour barrel, and the prisoner standing before him, — was the prisoner’s saying to the deceased, “You are not fit to be a doctor, you shouldn’t cometo my bulldog;” to which deceased replied, ‘ ‘I don’t know that you have got a bulldog: boys, has he a bulldog?” — and laughed. Deceased then said he would tell a joke on the prisoner, and told the following; that some years before, when the prisoner lived as a miller with the father of deceased^ the father of deceased rode from home on a work horse, leaving his riding mare; that the prisoner mounted the riding mare, and was riding towards the courthouse, when deceased met him, caused him to dismount, and led the mare back home, leaving the prisoner on foot. Deceased and the bystanders laughed heartily at this joke; whereupon the prisoner became very angry, threw open his waistcoat, and told deceased to strike him. Deceased said he would not dirty his hands with such a fellow. The prisoner then put his right hand into his pantaloons pocket, saying, “Day the weight of your hand upon me, and I will cut your god-damned throat.” The deceased replied, “Cut away; I am not afraid of your cutting.” After which the prisoner asked deceased, if he or his father knew anything dishonest of him; to which deceased replied, “No; but damn you. you would eat too much:” and deceased laughed heartily. Then the owner of the store, fearing the deceased might grow angry, beckoned him out of the storeroom into the counting room; whither he immediately went. As soon as deceased left the store room, in which the prisoner remained, prisoner entered into a jocular conversation with the witness Dinthicum, who was sitting upon the counter, crosslegged. This witness told prisoner to get on his (witness’s) foot, and let him . ride him; when prisoner observed *to some one present, “Do you hear that? he treats me as if I were a boy:” upon which prisoner raised the lower part of his waistcoat, and shewed to Dinthicum a knife in the inside of the waistband of his pantaloons, being somewhat concealed by the folds of his shirt, saying at the same time, “Do j’ou see that?” Dinthicum then jumped off the counter, and taking him by the seat of his pantaloons, raised him off the floor, let him go, and jumped out of the door. A very short time after this (not more than ten minutes after) the prisoner went into the counting room, walked up to the deceased, who was leaning with his right side against the facing of the outer door of the counting room, in conversation with the witness M’Clanahan, who was leaning against the opposite facing of the same door, and said to deceased several times, in a loud voice, “Day the weight of your hand upon me, and I will kill you.” The deceased, turning his face towards the prisoner, raised his left hand (which was open) and said to the prisoner in a mild tone, “I hope not, uncle Billy” — or, “Uncle Billy, I do not wish to fight you;” the right hand of the deceased hanging down by this side, in which he held his riding whip and glove, the butt end of the whip being a little extended behind his right hand. At the moment of uttering which words, accompanied with the elevation of the hand as aforesaid, the prisoner gave the deceased one mortal stab on the right side of the belly, near the navel, reaching into the stomach, with the country-made knife before described; and was in the act of repeating the blow, when his arm was arrested by the witness Crider, and the knife taken out of his hand by the witness M’Clanahan, the prisoner readily yielding it up. The deceased immediately sunk to the floor, upon the infliction of the stab; dyingof the wound the next morning. The prisoner thereupon left the counting room, and called for Berger and doctor Saunders, who lived at the place; saying, if doctor Saunders would dress the *wound, he would pay the fee. It was proved that about an hour before the stab was given, the prisoner shewed to one of the witnesses the knife with which he afterwards slabbed the deceased, then fastened to the inside of the waistband of his pantaloons; and putting his hand upon it, said, “This is the seat of life.” It was also proved that the prisoner had about his person a pocket knife, with a blade about two and a half or three inches long, on the day the deceased was stabbed, which was laken from him when he was arrested a few hours afterwards. It was also proved that the prisoner (who appeared to be between fifty and sixty years of age) was easily excited by the use of ardent spirits; and that, though peaceable, inoffensive and well behaved when sober, he was invariably turbulent and quarrelsome when under the influence of liquor. But though he had been frequently drinking in the course of the day, it was proved that be was not drunk at the time when the deceased was stabbed, and that he knew what he was about. The prisoner was arrested three or four hours after the stab was given, about four or five miles from Berger’s store, on the road, coming in the direction of the store, and was sober. When on his way to jail under arrest, he said to the witness M’Clanahan, that doctor Echols was a poor, drunken puppy, pretty much like himself; which words were spoken after he had taken several drams on the road; and there was no evidence that he said anything about this matter when on the road, till he had been drinking as aforesaid. The whole quantity of spirits the company had with them, was something more than a pint, and was used in common out of a bottle by the prisoner and his guard, four in number. It was proved that the deceased, at the time he arrived at the store aforesaid, had the appearance of having partaken of ardent spirits. Some persons in the store, on the day the deceased was stabbed, had been plaguing the prisoner ; *one by punching him in the back with a yardstick, and another by offering him an old coat, and saying that he had stolen it; and again by repeating the words used by the prisoner in George’s lane, ‘ ‘If you have not shot, do not shoot: it is Billy Bennett going to mill;” and there was no evidence that he became angry with those who thus plagued him. It was also 'proved that Echols had been at the store about half an hour before he received the stab. There was no proof» that either the prisoner or the deceased expected to meet the other at Berger’s; on the contrary, the meeting appeared to be altogether accidental. There was no proof of any quarrel between the prisoner and the deceased, before the day of the stabbing.
    The cause was argued here by Grattan for the petitioner, and the attorney general for the commonwealth,
    on the following questions presented by the record: 1. Whether there was not error in the omission to swear the sheriff for the faithful keeping of the jury; or, if he were in fact sworn, in the omission of the record to state the fact? 2. Whether a new trial should not have been granted, on the ground of the new testimonj' for the prisoner, discovered after the trial? 3. Whether the facts prove before the jury justified them in finding the prisoner guilty of murder in the first degree?
    
      
      Herder Sufficiency of Evidence.-See citing the principal case. Howell v. Com., 26 Gratt. 905. 1007.
    
    
      
      Criminal Law — Custodian of Jury — Oatii -Record.— The sheriff is bound ex officio to keep the jury when adjourned in a criminal cause, and it is not indispensably necessary that he be sworn, though it is generally done out of abundant precaution. But, if it were necessary to swear him, the court would be bound to presume that the sheriff was in fact sworn when the record does not show to the contrary. To this effect the principal case was cited in Trim v. Corn., 18 Gratt. 986; Barnes’ Case, 92 Va. 80f, 23 S. E. Rep. 784: Reed’s Case, 98 Va. 831, 36 S. E. Rep. 399.
      See further, monographic note, on “Juries’’ appended to Chahoon y. Com., 20 Gratt. 733.
    
   SMITH, J.,

delivered the opinion of the court. — The court are unanimously of opinion that there was no error in the opinion of the circuit court overruling the motion for a new trial, either on the ground of the verdict being contrary to evidence, or the discovery of new evidence. But there is some difference of opinion as to the objection, that it is not expressly stated in the record, that an oath was administered to the sheriff when the jury was committed to his custody until the meeting of the court the next day. But a majority of the court are of opinion *that the sheriff is bound ex officio to keep the jury, and it is not indispensably necessary that he should be sworn, though it is generally done out of abundant caution. But, if it were admitted to be necessary; in this case we would be bound to presume that in fact the sheriff was sworn, as the record does not shew the contrary. We find that in Kennedy’s Case, 2 Va. Cas. 510, and in Mendum’s Case, 6 Rand. 704, the records are precisely like this, as to the commitment of the jury to the sheriff; and this objection was not made.

BROWN, CLOPTON and CHRISTIAN, J.,

dissenting from the majority of the court on the point last adverted to, united in delivering the following opinion.

The accused was indicted at the last term of the superiour court for the county of Pittsylvania, for the murder of Joel H. Echols. He was found guilty by the jury, and subsequently moved the court to set aside the verdict and to grant him a new trial. The court refused the new trial. An exception was taken to the opinion of the court, and at the instance of the accused the judge certified the evidence.

The accused has applied to this court for a writ of error. In his petition, he states two grounds for it; first, that the verdict is not warranted by the law and the evidence ; secondly, the discovery of material evidence since the trial. Upon both these grounds we agree in opinion with the majority of the court, and therefore deem it unnecessary to say anything in addition to what has been already stated in the opinion of the court.

But the counsel for the accused, in the argument here, has raised another question ; to wit, whether it is necessary, in a criminal trial, where the jury is adjourned, that the officer in whose custody the jury in placed should be sworn; and whether, if it be necessary, the record of the case should shew the fact? On this latter *question, we (with great deference) differ from the majority of the court. We are of opinion that the officer should be sworn, and that the record should shew the fact. We think, upon a reference to the english authorities, it will be found to have been always the practice in England. See 1 Chitty’s Crim. Law, p. 628, 629. The author says, when the jury has been adjourned, the bailiffs are sworn “well and truly to keep the jury, and neither to speak to them themselves, nor suffer any other person to speak to them, touching' any matter relative to this trial:” and he refers to 6 T. R. 530, 531. The case referred to is the case of The King v. Stone. In that case the jury was adjourned; and in the report of the case is a copy of the entry of adjournment, directed by lord Kenyon, chief justice. That portion of it which affects this questions is in these words: “The jury impaneled and sworn to try the said issue have leave to withdraw from the bar of this court, being well and truly kept by six bailiffs, sworn not to permit any person to speak to them touching any matter relative to the trial of 'this issue.” The same doctrine is to be found in Hawkins, Hale and Buller; and no authority has been found of any precedent or dictum to the contrary. These authorities certainly go to shew that such has been the practice in England: and such being the uniform practice, we presume it is the common law. Here the practice, we understand, has generally, though not universally, been the same. We think that the practice is founded in sound reason, and should not be departed from; that the record should shew this fact, precisely as it shews the swearing of the jury; and that not to shew it, is error. We do not think it the ex officio' duty of the sheriff to attend an adjourned jury in a criminal case. In looking to the duties of the sheriff, we have not been able anywhere to find such stated to be the law. We presume the sheriff here, ex officio, has no greater powers or rights than the *sheriff in England; and there, we think we have shewn, such was not the ex officio duty of .the sheriff. The office of bailiff in England answers almost precisely to that of deputy sheriff here. The bailiffs took the same oath which the sheriff took; and though thus sworn, the courts in England, as already stated, uniformly swore them when an adjourned jury was committed to their charge. And this easy and reasonable protection seems to us necessary to the interests of the commonwealth and of the accused.

We think it may be safely affirmed that any practice, especially one salutary and wise, well calculated to protect and insure the rights and interests of the commonwealth and the accused, in criminal trials, which has been uniformly pursued for a long series of years, ought to be regarded as furnishing the law; and that to depart fom such practice would be to depart from the law.

Writ of error denied.  