
    
      Brown v. The Commonwealth.
    December, 1841.
    Criminal Law — Murder—Juries De Medietate Lin-guae — Discretion oí Court. — The courts having a discretionary power to direct juries de medietate linguae, or not to do so, in cases where aliens are parties ; in a prosecution for murder, the mere circumstance of the prisoner being an alien and ignorant of the language, is not sufficient to require the court, in the exercise of a sound discretion, to direct such aiury.
    Petition for a writ of error to a judgment, of the circuit superior court of Bedford. Brown having been examined in the county court of Bedford upon a charge of murder, and sent on for trial for the crime in the circuit superior court, the clerk of the county court, in pursuance of the statute concerning criminal proceedings against free persons, 1 Rev. Code, ch. 169, $ 9, p. 601, issued a venire facias commanding the sheriff to summon a jury of good and lawful men, freeholders of the county and of the neighbourhood where the fact was committed, to appear at the circuit superior court for the trial of the prisoner; and the sheriff, in obedience to the precept, summoned a jury of citizens and freeholders. The prisoner having been indicted for the murder in the circuit superior court, and upon arraignment pleaded not guilty, moved the court to quash the venire facias that had been issued, and to dii'ect a jury de medietate linguae to be summoned for his trial, upon proof adduced by him, that he was an alien and a native of Germany, and that he was ignorant of the english language. The court overruled the motion, and the prisoner filed a bill of exceptions to the opinion. A jury was then impaneled in the usual manner. Verdict, murder in the second degree, and term of imprisonment in the penitentiary fifteen years; and sentence accordingly.
    The prisoner presented a petition to this court, praying a writ of error, on the ground that he was entitled to a jury de medietate linguae, and that the court erred in refusing to direct such a jury.
    *Wingfield, for the prisoner.
    The attorney general, for the commonwealth.
    
      
      The principal case is cited in foot-note to Richards v. Com., 11 Leigh 690; Atlantic, etc., R. Co. v. Peake. 87 Va. 134, 12 S. E. Rep. 348. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   DUNCAN, J.,

delivered the opinion of the court. The only question raised by the record is, whether the fact, that the prisoner was an alien and ignorant of the language of the court, gives him a right to a trial by a jury de medietate lingu;e? This court, during the present term, in Richards’s case, has decided, that the statute providing that juries de medietate linguae may be directed by the courts respectively, is not imperative, but only confers a discretionary power on the courts, to direct such juries. Although the courts, in all cases where a person accused requires a jury de medietate linguae, should exercise a sound discretion, in directing or refusing the jury, this court, without intending to decide what particular state of facts would make it proper for a court to direct such a jury, is of opinion, that the mere circumstance of the prisoner not understanding the language of the court, is not a sufficient ground to require the impaneling of such a jury; and that there was no error in the refusal of the court, in this case, to direct a jury de medietate lingua;.

ROBRRTSON, J.

Tor some of the reasons assigned in the opinion I have just given in the case of Richards, and which apply more strongly to the present case, I think the writ of error asked by the petitioner ought to be awarded. Here there is no room for presumption or intendment. All the evidence before the court below is inserted in the record. It shews that the petitioner is an alien, speaking a language different from our own, and so imperfectly acquainted with the english tongue, as makes it difficult for him in ordinary conversation to understand others, or make himself understood by them: That on his arraignment he pleaded not guilty, and obtained a continuance: That at the ensuing term, *on being again brought to the bar, he alleged that he was an alien, and moved the court to quash the venire facias, and to cause a jury de medietate to be summoned, (in which particular the case resembles that of Uowther, to whom the superior court of Henrico granted such a jury): That the court overruled his application, and refused a privilege which the benignity of the law authorized at least, if it did not require, to be granted.

All remedial statutes, especially such as regulate proceedings in criminal cases, ought to be expounded favorably, and so as to serve the intent of the makers. It would not surely have been error in the court in this case to award the process : and I find it difficult to understand how it is, that in a criminal case, upon the same state of facts, it may be either right or wrong, as the judge wills it, to grant a privilege authorized by law. If this privilege may be refused rightfully in all such cases as that before us, I know of none in which it may not be refused; and the decision, in my judgment, goes near to the entire abrogation of the statute, which authorizes the courts to grant it. The only doubt on my mind is whether the petitioner, in praying the writ, did not come too late. But as the venire facias was most probably issued according to the general practice, by the clerk after the continuance, and not bjr the court; and as alt things, on the continuance, stood at the next term in the same plight as at the time of that continuance; more especially as some of the questions in this case are new and important, and have not been argued before the court, I am in favor of awarding the writ of error.

FRY, CUOPTON and CHRISTIAN, J., concurred in the opinion of Robertson, J.

Writ of error denied.  