
    Commonwealth v. Stockley.
    December, 1840.
    Felony- Jurors- -Power of Court to Examine on Voir Dire. — A circuit court has the right and power, on the trial of an indictment for felony, to compel a venireman or bystander called to serve as a juror on the trial, to be sworn on his voir dire, and to answer proper questions touching his fitness as a juror in the particular case.
    Perjury — Information—Sufficiency,—What is a sufficient information for perjury committed by a juror on his voir dire.
    On the 25th of May 1839, the circuit superior court of Northampton, upon the motion of the attorney for the commonwealth, founded on the affidavit of B. P. Dalbj’ a deputy sheriff, ordered that Charles B. Stockley be summoned to appear forthwith, to shew cause why an information should not be filed against him for wilful and corrupt perjury committed by him during the sitting of the then term of the court, in this, that he, being a bystander, was called upon as a venireman in a certain prosecution against one William Garrison for larceny, then pending against the said Garrison in the said court, *and being interrogated on his voir dire by the court whether he had made up and expressed his opinion as to the guilt or innocence of the said Garrison of the said larceny, he said that he had not, and thereupon he was elected and sworn as a venireman in the said prosecution, when in fact and in truth he had made up and expressed an opinion favourable to the acquittal of the said Garrison of the said charge. The summons having been issued and executed on Stockley, and he not appearing, an information was ordered and accordingly filed, which was in the following terms:
    “Commonwealth of Virginia, third judicial circuit, county of Northampton to wit: Be it remembered that Peter P. Mayo, attorney for the commonwealth of Virginia prosecuting in the circuit superior court of law and chancery for the said county, cometh into the said court on the 25th day of the month of May in the year 1839, leave of the said court being first had and obtained, and giveth the said court, in his own proper person, to understand and be informed, in behalf of the said commonwealth, that at the circuit superior court of law and chancery begun and held for the said county of Northampton on the 21st of the said month of May in the year 1839, a certain issue was then and there pending between the commonwealth of Virginia and one William Garrison, in a certain plea of felony and larceny, which came on to be tried in due form of law; upon which trial a certain Charles B. Stockley, in the county aforesaid and within the jurisdiction of this court, was duly and legally called upon by George F. Wilkins a deputy sheriff of said county, he the said Charles B. Stockley being then and there a bystander, as a juror, to discharge the duties and function of a juror in the said issue then and there pending between the said commonwealth and the said William Garrison in the said plea of felony and larceny, and he the said CharlesB. Stockley was then and there duly sworn on his voir *dire in the said circuit superior court of law and chancery for the said county-of Northampton, by the said court on the 21st day of the said month of May in the year aforesaid, and took his corporal oath upon the holy gospel of God, before the honourable Abel P. Ushur judge of the said circuit superior court of law and chancery for the said county of Northampton, then and there holding said court, the said circuit superior court of law and chancery then and there having competent authority to administer the said oath to the said Charles B. Stock-ley in that behalf; and he the said Charles B. Stockley, after having duly sworn as aforesaid, was interrogated and enquired of by the said circuit superior court of law and chancery for the said county of Northampton, on the said 21st day of May in the year aforesaid, whether he the said Charles B. Stockley had made up and expressed his opinion touching the guilt or innocence of the said William Garrison of the said larceny and felony. And the said Peter P. Mayo giveth the court here further to understand and be informed that at and upon the trial of the said issue between the said commonwealth of Virginia and the said William Garrison, it then and there became and it was a material question and fact whether he the said Charles B. Stockley had made up and expressed his opinion concerning the guilt or innocence of the said William Garrison of the said larceny and felony. And the said Peter P. Mayo giveth the said court further to understand and be informed that the said Charles B. Stocklejr, being so sworn as aforesaid, not regarding the laws of this commonwealth, and contriving and intending to prevent the due course of law and justice, then and there, in answer to the said interrogatory then and- there propounded to him by the said circuit superior court of law and chancery for the county of Northampton aforesaid, upon his corporal oath aforesaid, wilfully, corruptly, falsely and maliciously, before the said honourable *Abel P. Upshur, then and there holding the said circuit superior court of law and chancery for the county of Northampton aforesaid, did swear that he the said Charles B. Stockley had not made up and expressed his opinion touching the guilt or innocence of the said William Garrison of the said larceny and felony, whereas in fact and in truth he the said Charles B. Stockley had, before the said 21st day of May in the year aforesaid, made up and expressed his opinion touching the guilt or innocence of the said William Garrison of the said larceny and felony; to the evil example of all others in like case offending, and against the statute in such cases made and provided, and against the peace and dignity of the commonwealth. ’ ’
    The defendant pleaded not guilty to the information, and an issue was made up thereon. In this state the cause was continued on the docket until October term 1840, when the defendant, by leave of the court, demurred generally to the information, and also filed a special demurrer thereto; in both of which demurrers the attorney for the commonwealth joined. In the special demurrer, the defendant craved oyer of the record in the suit of the commonwealth against William Garrison, referred to in the information, and set forth the same in hasc verba. It thereby appeared, that on the 21st of May 1839, the grand jury impanneled and sworn in the circuit court of Northampton presented ‘ ‘ an indictment against William Garrison for grand larceny, a true bill;” which charged that the said Garrison, on &c. in the said county and' within the jurisdiction of the said court, feloniously did steal, take and carry away three pieces of woollen cloth of the value of 100 dollars, of the goods and chattels of G. W. Robins and W. H. Bell, against the form of the statute: that on the same day, the said Garrison, “who stands indicted of larceny in stealing goods and chattels upwards of the value of ten dollars, was led to the bar *in custody of the jailor, thereof arraigned, and pleaded not guilty to the indictment;” that thereupon two of the veniremen summoned for the trial, and Charles B. Stockley and four other bystanders, “were elected, tried and sworn the truth of and upon the premises to speak:” that the jury was completed on the 22d of May 1839: and that on the following day (the 23d) the jury returned a verdict finding the said William Garrison not guilty of the larceny aforesaid; whereupon, it was considered by the court that he be thereof acquitted and discharged. After setting forth the record of the proceedings against Garrison, the special demurrer proceeded to assign the following objections to the information: “1. Because the said information does not aver that the oath alleged to have been taken wilfully, corruptly, falsely and maliciously before the honourable Abel P. Upshur, was taken by his the said Charles B. Stockley’s own voluntary act, consent or agreement, agreeably to the statute in such cases made and provided. 2. Because there is a variance between the record in the said prosecution against the said William Garrison, and that set forth in said information, in this, that the said record of which oyer is given shews that the said Garrison was tried on an indictment for larceny, and the said information alleges it to have been a plea of felony and larceny, which came on to be tried in due form of law. 3. Because the said information does not aver and shew at what particular place the court was held before which the alleged false oath was taken. 4. Because the said information alleges that it was at and upon the trial of the said issue (meaning the issue made up in the prosecution on behalf of the commonwealth against William Garrison) that he the said Charles B. Stockley took the alleged false oath, whereas the record does not shew that the said Charles B. Stockley was sworn on the trial of said issue. S. Because the said information does not aver nor shew whether the said ^William Garrison was convicted or acquitted. 6. Because the said information does not aver nor shew whether the said Charles B. Stockley was elected asa juror for the trial of said William Garrison. 7. Because there is a variance between the said information and the summons to shew cause why it should not be filed. 8. Because the case of the commonwealth against said William Garrison is not correctly described in the said information.”
    The statute 1 Rev. Code, ch. 148, § 1, p. 571, enacts, that “If any person, either by the subordination, unlawful procurement or sinister persuasion of another, or by his own voluntary act, consent or agreement, shall willfully, corruptly and falsely swear, or in solemn manner affirm, to any material m atter. before any court within this commonwealth, or before any justice of the peace, or before any commissioner or commissioners appointed to take any deposition or depositions, or before any person or persons whatsoever authorized by law to administer an oath ; and, at the time when such false oath or affirmation is taken, the court or justice, or commissioner or commissioners, or other person or persons, before whom it is taken, be acting under the authority of law, upon the subject matter to which such false oath or affirmation relates ; such person so offending shall be deemed guilty of perjury.”
    As to the sufficiency of the information in the foregoing case, see 1 Hawk. P. G. by Curwood, book 1, ch. 27, § 18, 26, pp. 488, 442.-Note in Original Edition.
    The matters of law arising upon the demurrers having been argued, the circuit court, by consent as well of 'the attorney for the commonwealth as of the defendant, adjourned to this court the following questions : 1. Has the court the right and power, on the trial ot an indictment for felony, to compel a venireman, or other person called from the bystanders to serve as a juror on the trial thereof, to answer on his voir dire, or to be sworn so to answer, questions touching his fitness as a j the particular case? 2. All other questions arising on the record.
    
      
       Jurors. — On matters pertaining to Jurors, see monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
       Perjury — Information.—See monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com.. 14 Gratt. 674.
    
   UPSHUR, J.,

delivered the opinion of the court. — As to the first question adjourned, we are unanimously of opinion that it should be answered in the affirmative. The practice throughout the commonwealth for a long series of years, hitherto without a serious doubt of its correctness, ought to be considered as settling the law in that respect. And even if it were a case of first impression, we see no reason to doubt that the power in question belongs to and may rightfully be exercised by the court, as necessary to the proper administration of the criminal laws.

As to the questions adjourned under the second head, the court, without deciding on the propriety of allowing the defendant to plead and demur at the same time, is of opinion that the information is good, and that the *demurrers thereto should be overruled. In this opinion, however, two of the judges do not concur.

The entry in the general court was as follows:

“This court is of opinion and doth decide, 1. That a circuit court has the right and power, on the trial of an indictment for felony, to compel a venireman, or other person called from the bystanders to serve as a juror on the trial thereof, to be sworn on his voir dire, and to answer proper questions touching his fitness as a juror in the particular case. 2. That the information in this case is good, and that the demurrers thereto ought to be overruled.”  