
    *Wash v. The Commonwealth.
    October Term, 1861,
    Richmond.
    1. Statutes—Issue of Venire Facias—Directory.—The act, Code, ch. 208, § 5, p. 836, and the act, Code, ch. 105, § 14, p. 828, directing the issue of a venire facias are merely directory to the officer, and a prisoner cannot object to the writ because the acts have not been complied with.
    2. Venire Facias—Unwarranted Qualification—Effect. —The act, Code, ch. 162, § 1, was repealed by the act of April 9, 1853, Sess. acts, p. 47, and jurors iu cases of felony are not now required to own estate real or personal, of the value of one hundred dollars. And if the writ of venire facias requires the officers to summon jurors with this qualification it will be quashed on motion of the prisoner.
    3. Same—Error on Face of Writ—Objection in Appellate Court.—If there is an error on the face of the writ of venire f acias, and the prisoner moves to quash it, though he does not specify the error, it may be taken advantage of in'the appellate court.
    4. Criminal Law—Uttering Counterfeit Coin:—Scienter —Presumption.—In a prosecution for uttering counterfeit coin, the guilty knowledge of the prisoner that the coin was counterfeit is a fact to be proved, and there can be no presumption of law, from the existence of other facts, of this guilty knowledge; though there may be a presumption of fact.
    5. Same—Guilty Intention — Presumption — Qua’rc. — QtTASRB: If there be a presumption of law of a guilty intention in any prosecution for a criminal offence; except in the case of a prosecution for murder.
    
      On the 18th of February 1861, Harvey Wash was indicted, by the grand jury of the Hustings court of the city of Richmond, held by the judge thereof, for feloniously uttering and attempting to employ as true, to Richard Emmerson, one piece of false, forged and base coin, forged to the likeness of a quarter eagle, a gold coin current by law and usage in this State, he knowing *the same to be false and forged, with intent to defraud, &c. Upon the motion of the prisoner the trial was postponed to the March term of the court: And at the March term he was tried and convicted by the jury, and they ascertained the term of his imprisonment in the penitentiary at two years; and the court sentenced him according to the verdict.
    The prisoner filed six bills of exceptions to rulings of the court made in the progress of the trial; of which however, only the first, fifth and sixth were noticed by this court. The first was to the refusal of the court to quash the venire facias. The venire facias bears date the 27th of February 1861, and directs the sergeant to cause to come before the judge of the Hustings court “on the 1st day of the next March term of the court to be held by the said judge, (being the 18th day of March 1861), twenty-four good and lawful men freeholders of the corporation,”—“each one of whom is twenty-one years of age and owns property real or personal, of the value of one hundred dollars at least.” Upon the calling of the cause and after the same was pronounced to be ready for trial, the prisoner moved the court to quash the venire facias, because it had not been issued more than twenty days before the then term of the court, and for other errors alleged to be apparent on the face of the paper, but not mentioned by the counsel or the accused. Which motion the court overruled; and the prisoner excepted.
    The fifth exception is to an instruction given by the court on the motion of the attorney for the commonwealth. This exception sets out the evidence given on the trial. This evidence, if believed, shows that the prisoner in payment of his bill, on the 3d of January 1861, passed to Emmerson a two dollars and a half piece which was received by him as gold, and that Emmerson paid him back one dollar in change; and that the piece *was counterfeit. It also shows that the prisoner on that and the day previous, passed similar pieces purporting to be of the same amount, to four other persons either in payment for debts or purchases: all of which were counterfeit. It further shows that when he was arrested on the 3d he had in his purse $55 of one dollar pieces, and near or quite $200 in two dollars and a half pieces, and he had in his traveling bag $247 of the like pieces; all of which were counterfeit. The prisoner when asked by the officer who arrested him, how he came by the money replied first that he could not say to save his life; and again that he had been trading in southern money at a discount, and might have got some on the borders of North Carolina ; and he afterwards said he won some from a hog drover.
    The prisoner, who had before lived in the county of Hanover, removed to Appomattox about a year previous to the trial, and resided about six miles from Pamplin’s depot on the Danville railroad. And he introduced two witnesses, who stated that between the 10th and 15th of December 1860, they saw the prisoner and a man called Jones, a stranger to them, in a shanty at Pamplin’s depot with a considerable quantity of gold and bank notes; that they saw the prisoner hand Jones a roll of notes, and the prisoner had some gold loose in his hand, and there were rolls of paper as if gold were wrapped in them. And one of these witnesses stated that Jones said he owed a large debt in North Carolina, and to save the per cent, he was merely exchanging gold for North Carolina money. It was in proof that the prisoner married in Appomattox county some thirty years since, and his wife’s family is of high standing. And a number of highly respectable witnesses testified that they had known the prisoner for years, (some for ten and some for thirty years,) that they were his neighbors,, knew him well, and that he was a man of the highest character.
    *The instruction given by the court isas follows:—'“The cdurt instructs the jury that if they believe from the evidence that the piece of coin charged in the indictment to have been uttered by the prisoner was forged, and that it was uttered by the prisoner to Richard Emmerson as genuine, and that at the time he uttered the same he had in his possession a large number of similar forged coin, and that he did within a short space of time before or afterwards utter similar pieces of forged coin to other persons, and that he gave false and contradictory accounts of the manner in which the said forged coin came into his possession, then the law presumes the prisoner knew that the piece of coin uttered to the said Richard Emmerson was forged, and unless that presumption is rebutted by the evidence they should find the prisoner guilty.”
    The sixth bill of exceptions states that the jury retired to consider of their verdict on Monday the 1st of April, and after several hours absence they returned into court and announced that they were unable to agree. They were committed to the sergeant, and the next morning they came into court and stated that they had been unable to agree. They then retired to the jury room to consult, and about 4 p. m. they came into court and said to the judge, “that they wished to know if they must take the instruction of the court as law. And the court then informed them, that, in his opinion, they were bound to take the instruction of the court as law; but they must consider and decide upon the evidence in the case. That if there was any error in the instruction it would be corrected in the court of appeals.”
    Upon the application of the prisoner this court awarded a writ of error to the judgment.
    Crump and Nance & Williams, for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      Statutes—Venire Facias—Directory.—The principal case was cited and approved in Hall v. The Commonwealth, 89 Va. 173, 15 S. E. Rep. 517.
      See also, the principal case cited in Spurgeon v. Com., 86 Va. 656, 10 S. E. Rep. 979.
    
    
      
      Venire Facias—Failure to Comply with Statute-Effect.—In Whitehead v. Com. 19 Gratt. 651, the writ failed to comply with the statute requiring the jurors to be summoned “remote from the place • where the offence is charged to have been committed.”
      The court said: “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, andin 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.”
    
    
      
      See generally, monographic note on “Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
       CriminaI Law—Possession of Stolen Goods—Presumption of Fact.—In State v. Heaton, 23 W. Va. 792, the court said: “In Smith v. State, 58 Ind. 341, it is held: ‘Thepresumption arisingfrom the possession of stolen goods is one wholly of fact and not of law.’ In this the court of appeals of Virginia concurs. (Wash’s Case, 16 Gratt. 530; Price v. Com., 21 Gratt. 846.)” See also, on this point, the principal case cited in Walker v. Com., 28 Gratt. 976. See foot-note to Price v. Com., 21 Gratt. 846; foot-note to Walker v. Com., 28 Gratt 969.
      In Trogdon v. Com., 31 Gratt. 873, the court said: “The opinion of this court in Wash’s Case, 16 Gratt. 541, has a strong bearing upon this question. There the distinction is plainly drawn between guilty knowledge or intent as a presumption of law, and guilty knowledge or intent as a presumption of fact—a mere inference to be drawn by the jury. In the latter case, whilst the jury may find the accused tniilty upon a given state of facts, they are not botina to do so. They are to weigh all the circumstances, and draw from them such conclusion as they may think warranted by the evidence. In this class of cases it has been held that even the admission of the accused that the act was done with a fraudulent or malicious intent cannot preclude the Commonwealth from proving it by any proper evidence. Commonwealth v. McCarthy, 119 Mass. R. 854; Priest v. Inhab. Groton, 103 Mass. R. 530.”
      See generally, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   *AI/Lf33N, P.,

delivered the opinion of the court:

The plaintiff in error was indicted in the Hustings court of the city of Richmond on the 18th day of February 1861; and the trial at the instance of the accused, was postponed until the March term of said court. At that term when the cause was called for trial, and after the same was pronounced to be ready for trial, the accused moved the court to quash the venire facias, because it had not been issued more than twenty days before the said term of the court, and for other errors alleged to be apparent on the face of the writ, but not mentioned by the counsel or the accused. The motion was overruled; and the prisoner excepted.

The Code of 1860, ch: 208, $ 5, p. 836, provides that if a person accused of felony be not tried at the term of a superior court, to which he is remanded for trial, the clerk thereof shall, at least twenty days before any subsequent term that the case remains pending, issue a venire facias for his trial, returnable, &c. The same Code, ch. 105, 14, p. 828, directs the clerk of a county or corporation court which determines that a person ought to be tried in a Circuit court,; as soon as may be to issue a venire facias directed to the officer of the court in which the trial is to be.

It seems to me that both of these provisions are directory to the officer, and not intended for the benefit of the accused, except so far as a compliance with the provisions of the statute may tend to ensure a speedy trial. In one case' as twenty days may not intervene between the examining and circuit courts, the clerk of the examining court is to issue the writ as soon as may be, so as to enable the officer to summon a proper venire before the term of the circuit court. In the other case where the trial is postponed at the first term of-the circuit court, the law makes it the duty of the clerk of that court, at least twenty days before a subsequent term, to issue a *venire facias; the object being to remind the clerk of the necessity of . issuing the writ in time for the proper offi-1 cer to execute it. All that the accused can require is, that it shall have been issued and executed, so that the trial may be had at the proper term, and the writ be executed in such time, that he may if he request it, be furnished with the list of jurors summoned for his trial. That list he is entitled to; but not before the first day of the term; that being the return day of the court, unless the court has directed it to be returnable on some other day.

It is further objected to the venire facias that it annexes a condition to the persons to be summoned not warranted by law, whereby a class of qualified jurors is excluded, and so the range of selection . narrowed. The writ requires -the officer to summon twenty-four good and lawful men, freeholders of his corporation, each one of whom is twenty-one years of age, and owns property, real or personal, of the value of one hundred dollars at least. By the Rev. Code of 1819, p. 601, ? 9, the officer was required to summon twelve good and lawful men, freeholders of his county or corporation.

The act of February 24, 1846, sess. acts p. 62, superadded the qualification of being possessed of visible estate real or personal, of the value of five hundred dollars. The act of 1847-8, sess. acts p. 148, $ 5, reduced this property qualification to three hundred dollars. The Code, ch. 162, (j 1, provided that no person should be qualified to serve upon a petit jury in any proceeding, civil or criminal, unless he was twenty-one years of age, and owned property, real or personal, of the value of one hundred dollars. This section being the 1st section of chapter 162, together with several other sections of the same chapter of the Code, was repealed by the 39th section of the act of April 9, 1853, sess. acts p. 47. The first section of the act of 1853, p. 43, provides that all *free white male persons who are twenty-one years of age, and not over sixty shall be liable to serve as jurors except as herein provided. By the 2nd section of the act certain officers of government, &c., were exempted. By the 28th section of the same act, p. 46, it is enacted that nothing contained in the preceding.sections shall apply to the empaneling of juries in cases of felonies, but the jurors shall be called, chosen, sworn and empaneled for the trial of every case of felony according to chapter 208, of the Code of Va., concerning juries in such cases. The provisions of this act have been incorporated in the Code of 1860, pp. 687, 691, ch. 162, § § 1, 27, and p. 835, ch. 208, § 4. The 1st section, as we have seen, dispenses with the property qualification entirely; and the 39th section repeals the first section of ch. 162, of the Code requiring such qualifications; and the 28th section declares that nothing contained in the sections preceding shall apply to the empaneling of juries in cases of felonies, but the jurors shall be called, chosen, sworn and empaneled according to chapter 208 of the Code.. The Code, chap. 208, 4, p. 774, provides that in a case of felony the writ of venire facias shall command the officer to summon twenty-four freeholders residing remote, &c., “and qualified in other respects to serve as jurors.” If the act of 1853 had contained no other provisions bearing on this question it might have been argued with great force, that although the first section dispensed with the property qualification in terms sufficiently broad to cover criminal as well as civil cases, yet that as 'the 28th section declared that the preceding sections should not apply to the empaneling of juries in cases of felonies, that the property qualification was intended to be retained in such cases, and that the 4th section of chapter 208, of the Code, referred to as furnishing the rule, must be construed as if the law in this respect remained unchanged by the act of 1853, dispensing *with the property qualification generally. That the phrase in that section “qualified in other respects to serve as jurors,” comprehended all things essential to the qualifications of jurors by the common law where unaltered or by statutes then in force. But the act of 1853 did not stop with the enactments referred to. By a subsequent section it expressly repealed the statute requiring a property qualification. There is therefore no law in force requiring a property qualification upon which that clause can operate. It may be satisfied however by referring it to the various common law provisions touching the qualifications of jurors, and such statutory provisions as remain in force; as for instance the disqualification to serve as a juror resulting from a conviction for perjury, &c. I think therefore that the only property qualification intended to be retained, is' that designated in the 4th section of chapter 208, which enacts that the venire facias shall command the officer to summon twenty-four freeholders. If freeholders, and qualified in other respects according to the common law where applicable and statutes still in force, the freeholder is a proper juror, though his property, real and personal, may not be of the value of one hundred dollars. The defect in the writ appearing on the face of it, a motion to quash was the proper mode of taking advantage of it. MeWhirt’s case, 3 Gratt. 594. In that case a writ of venire facias was quashed by the order of the court without the consent of the prisoner, because the prisoner, who had been indicted jointly with others, had elected to be tried separately, and the writ had directed a venire to be summoned for the trial of all jointly indicted.

Nor do I regard it material to the question whether this mandate of the writ was regarded by the officer or not. The presumption is that he confined himself to the mandate of the writ, and summoned only such as *he was thereby required to summon. Nor in such case can the accused be required to show he has been injured by the error of the officer issuing the writ. The summoning officer has been required to exclude from the jury persons who by law the prisoner was entitled to have as his triers, and if the writ may thus limit the range of selection, the trial of offences would be confined to such persons as the clerk thought proper to designate. No such power has been entrusted to any functionary, and not being authorized by law, the court erred in overruling the motion to quash.

Nor does the omission to point out the error in the court below preclude him from raising the objection here. He moved to quash for one defect which was specified, and other errors alleged to be apparent on the face of the paper. The motion raised every objection to the writ for matter apparent on the face of it. It is the duty of the commonwealth through her officers, to conduct her prosecution according to law; and no obligation rests on the accused to point out errors for the benefit of the commonwealth. I think the court erred in overruling the motion to quash the venire facias, and for this error the judgment should be reversed.

The petitioner in his assignment of errors, and by his counsel in argument here, contends that there was error in the instruction given by the court at the instance of the attorney for the commonwealth, upon the whole evidence as set forth in the fifth bill of exceptions. The instruction is somewhat ambiguous, leaving it doubtful whether the court intended to say that the guilty knowledge was a legal presumption which the jury were bound to deduce from the fact set forth, unless rebutted by the evidence, or as furnishing a strong presumption of the fact of guilty knowledge which if unexplained or rebutted might warrant a verdict of guilty. I think the terms used implied that the court intended to instruct '*the jury that the facts set forth if not rebutted, raised a legal presumption of the further fact of guilty knowledge, which bound the jury to find the prisoner guilty. And this it is fair to infer, was the belief of the jury; for it appears by the sixth bill of exceptions, that after the case had been committed to the jury, they came into court the next day and enquired, if they must take the instruction of the court as law, and were informed they were, in the opinion of the court, so bound; but they must consider and decide upon the evidence in the case. Thus limiting the jury to the enquiry whether the evidence proved the facts set forth in the instruction; and if they were satisfied that those facts were established, that they raised of themselves the legal presumption of guilty knowledge, and the jury should find the prisoner guilty.

The question how far a jury is bound to presume guilt or a guilty intent from any state of facts, is involved in very great doubt by the authorities. The various decisions on the subject are reviewed and commented on by Bishop on criminal law, §§ 248, 249 and 513; 2 Starkey’s Ev. part 2,928,- note p; 3 Arch. Crim. Prac.’.550; and Best on presumptions, ch. 1, 2, 3. By one. elementary writer it is said that where the policy of the law and ends of justice require that a presumption should be; made, the jury should be told they ought to make the presumption, unless some evidence be given to the contrary ; it should not be put to them as a matter of discretion. Larceny for example, it is said, is inferred from the recent possession of stolen property. Best on presumption, ch. 3, § 40. Starkey, ubi supra, says that though the fact of á connection between the recent possession of stolen property by the accused, with the fact that he stole it, are usually combined, experience shows that this connection, although unusual, is not necessary. No artificial weight can be attached to it, and juries do not convict ^unless fully satisfied of the actual guilt of the prisoner. Artificial presumptions can therefore never be safely established as a means of proof in criminal cases. The author reprobates in proper terms what he calls the abominable and sanguinary statute, of' 21, Jas. 1, ch. 27, which made the concealment of the bastard child by the mother, evidence that she murdered it.

It is a maxim laid down by all writers on criminal law, that every person must be presumed to intend that which is the immediate and natural consequence of his deliberate acts. And therefore, it is said, that the uttering a forged document is conclusive evidence of an intention to defraud the person who would naturally he affected by it. And the weight of authority would seem to be in favor of that proposition. But the correctness of the rule seems to be controverted by the reasoning of Starkey, ubi supra ; and Bishop on Crim. Law, $ 248, says it is probably impossible to lay down any exact rule in the present state of the authorities. In homicide 'it is conceded to he a presumption of law that where the fact of slaying has been proved, malice must be intended; and that all circumstances of justification or extenuation are to be made out by the prisoner unless they appear from the evidence adduced against him. Roster’s C. L. 255, 290. Perhaps in most other criminal prosecutions, the jury instead of being bound down by artificial rules, should be instructed that in the absence of all rebutting evidence they might fairly make such presumption.

The question of guilty kno wledge involved in the present case is of a different character from that of presumed intention from a given state of facts. The guilty knowledge is itself a fact constituting an essential ingredient of the offence charged. The actual existence of the fact must be proved either directly or by such other facts and circumstances, as when fairly investigated *by the-proper tribunal for the ascertainment of facts, can leave no reasonable doubt that the fact does exist.

The court cannot assume in supposed adherence to any artificial rule of law, that other facts being proved to exist, there is in all cases a legal and necessary connection between such facts and the other fact to be presumed. The determination rests exclusively with the jury; and they must decide truly according to their own convictions upon a consideration of all the evidence before them. Rrom a state of facts being proved to exist to their satisfaction, such as those detailed in the bill of exceptions, most men disposed to act fairly would deduce the fact of guilty knowledge as being satisfactorily established; and so that the offence charged was proved beyond all reasonable doubt. But evidence of general good character might tend to rebut the presumption. And under peculiar circumstances the general presumption of innocence until guilt was proved might have the like effect. The weight of such evidence and presumption in any case is to be determined by the jury alone. The proof of such facts as those set out in the instruction, in the absence of every thing to contradict or explain them, might in general be sufficient to warrant a conviction; yet as was remarked by the judge in his opinion in Spencer’s case, 2 Leigh 751, 756, it would not bind the jury with conclusive force. It is nothing more than a high degree of presumptive proof; and that in some cases of presumptive proof the inferences would be very strong and irresistible, in others weak and wholly inconclusive. And in all cases the jury are to weigh the circumstances and draw from them what inferences they may warrant.

The instruction as given did not leave the jury such liberty; it constrained them, paying a proper respect to the opinion of the court, to draw the inference of guilt as a legal presumption, from the facts as set forth, if *they believed them, unless that presumption was rebutted. Deciding in effect that if such facts were found by a special verdict, supposing a special verdict proper in a criminal case, the court would presume from them the additional fact of guilty knowledge necessary to make out the crime, though such fact was not expressly found. I think the instruction was erroneous, and if asked for in the same terms should not be given.

Judgment reversed.  