#### Heath v. The Commonwealth.

December, 1842.

Criminal Law—Jurors—Right of Prisoner to Examine on Voir Dire.—A person called as a juror upon a trial for felony and sworn to answer questions touching his competency, having deposed that he has formed no opinion nor come to any conclusion on the case, prisoner’s counsel is about to interrogate him farther, and asks whether he has not conversed much about the case?—when court arrests the examination, and decides that no-farther question shall be put to the juror by prisoner’s counsel, and that he is a competent juror: Held, such proceeding and decision of the court are erroneous, and judgment against prisoner must be reversed therefor.

Same—Same-Competency— Preconceived Opinions.*— The doctrine laid down in Osiander’s case, 3 Leigh 780, and Armistead’s case, 11 Leigh 657, as to the disqualification of j urors by preconceived opinions, respecting the case of the accused, reaffirmed.

Same—Same—Same—Same.—A person is not rendered incompetent as a juror in a criminal case, by the formation of a legal opinion upon facts previously presented to his mind, as he would be by formation of previous convictions in respect to the facts themselves.

Same—Murder—Evidence—Proof of Distinct Felony.-' On a trial for murder, evidence that the prisoner, on the same day the deceased was killed, and shortly before the killing, shot a third person* held admissible under the circumstances of the case, notwithstanding the evidence tends to prove a distinct felony committed by the prisoner; such shooting, and the killing of the deceased, appearing to be connected as parts of one entire transaction.

Same—New Trial—Perjury of Jurors on Voir Dire— Discovery after Verdict.†—After a verdict of conviction for murder in the first degree, prisoner adduces testimony that two of the jurors who tried the case, and who on the voir dire declared that they had not formed or expressed any opinion as to the guilt or innocence of the prisoner, ‘ffiad in fact, previous to the trial, expressed decided opinions that the prisoner *446was guilty and ought to he hung; of which circumstances prisoner alleges he had no knowledge until since the verdict was rendered; and on this ground he moves to set aside the verdict. Held, 1. Such enquiry was open, and the evidence admissible, for the purpose of shewing perjury and corruption in the jurors. But, 2. It belonged exclusively to the judge who presided at the trial, to weigh the conflicting credibility of the witnesses adduced by the prisoner and of the jurors, and to decide whether, in justice to the prisoner, and upon all the circumstances of the case, a new trial ought or ought not to be awarded.

Fletcher Heath was indicted, in the circuit superior court for the county for Henrico and city of Richmond, of the wilful murder of Delia Harris. At October term 1842, a jury being impaneled for his trial found him guilty of murder in the first degree, and the court passed sentence of death upon him.

In the course of the proceedings, the court gave opinions upon several points against the prisoner, to which he excepted.

I. Upon the trial of the cause, Richard Malone was called as a juror from among the bystanders, and being sworn to answer questions touching his competency as a juror, deposed, that he has formed no opinion or come to any conclusion upon the case of the prisoner; what he has heard was rumour, and he does not know that he has heard all the circumstances. Whereupon the counsel for the prisoner being about to interrogate the juror farther, for the purpose of shewing farther the state of his information and opinion of the case, and having asked the juror whether he had not conversed much about the case? the court arrested him, and decided, that after the answer above stated by the juror, no farther question should be put to him by the counsel for the prisoner, and that the juror was a competent juror. To which opinion of the court, the prisoner excepted.

*11. Several other persons, namely, A. D. Royster, N. *Q.*Crow, D. A. Fisher and Walker Haxall, being called as jurors upon the trial, and examined on oath touching their competency, were thereupon challenged by the prisoner for cause; but the court in each case overruled the challenge; and the prisoner in each case filed a bill of exceptions. The purport of those exceptions need not be farther stated.

III. Upon the trial of the cause, the attorney for the commonwealth, having introduced evidence that Delia Harris was, some 10 or IS minutes before 12 o’clock of the night of friday the 28th of January 1842, killed by several severe blows or wounds inflicted with a large knife or some other sharp instrument, and having offered further evidence for the purpose of identifying the prisoner as the person who inflicted the moral blows, and for the purpose also of shewing the weapon wherewith they were inflicted, and (inter alia) having produced a leathern scabbard of a bowie knife, which was proved to have been found in the room of the deceased, lying partly under a bureau there, on the evening after her death,— then introduced Bennett Scott as a witness, who testified, That on the night on which the said Delia Harris was killed as aforesaid, before the fact occurred, namely, about 8 o’clock in the evening, he the witness went to the house where the prisoner and one Carter Wells lived, and there he played a game of cards with the prisoner, Wells being absent at the time. That the prisoner shortly left off playing, and went to mending a pair of pantaloons. That during this time, witness asked the prisoner where Wells was? and the prisoner said he had gone to the theatre. That when the prisoner had done mending the pantaloons, he took from the pocket of those he had on, a pistol, which he laid on the corner of the sideboard, and then pulled off the pantaloons he had on, and put on those he had mended, and put the same pistol in the pocket or waistband thereof. That *the witness told the prisoner he had best not carry the pistol; and prisoner said, he always carried it. That the prisoner then said to the witness, “Do you know that I would kill two persons this night if I came across them? If I had had a half pint of brandy, I would have done what I intended to do, at Bradle3r’s, and it would have been all over with them.’’ That the prisoner had before been talking of Carter Wells and Delia Harris, and said they had been together at Bradley’s that evening; he said that Wells and himself had rode out together that evening, and stopped at Bradley’s, where Delia Harris then was. That the prisoner said, he would not mind killing any person; that he had once before shot a woman at a ball in Petersburg, and shot at a man in a barroom. That the witness, on the same evening, before this conversation between himself and the prisoner, had seen Delia Harris and Martha Gilliam going to the theatre, and had mentioned this to the prisoner, which he supposed was the reason the prisoner came to speak of Delia Harris.

And then the attorney for the commonwealth introduced the above named Carter Wells as a witness, who testified, That on the night the said Delia Harris was killed, and before she was killed, namely, about 8 o’clock in the evening, the witness being about to go to the theatre, the prisoner desired him to tell Delia Harris, she must not let him in if he came there the next day; if she did, he would kill her. That the witness did see Delia Harris at the theatre, and told her what the prisoner had said; which she seemed to pay no regard to. That the witness and Delia Harris came from the theatre together, and parted near the witness’s house; he went home, and she towards her own house—■

And the witness was proceeding, when he was stopped by the prisoner’s counsel; who, apprehending that the witness was about to detail the circumstances attending the shooting of himself (the witness) by the *prisoner on the same night *447and shortly before the said Delia Harris was killed, objected that, on the trial of this indictment, it was not competent for the commonwealth to offer any evidence for the purpose of proving- any other felony or crime committed by the prisoner on another person, at another place, and at another time, though on the same night; much more, evidence of the substantive distinct felony of shooting the witness Wells, for which there was another indictment now pending against the prisoner. The attorney tor the commonwealth avowed his purpose to be, to prove that the prisoner shot the said Wells with a pistol very shortly before the said Delia Harris was killed, and at the house where the prisoner and Wells both lived, and to prove all the circumstances attending that shooting, and esx)ecially to prove that after the shooting of Wells, the prisoner got a bowie knife in a scabbard, which was the same scabbard found in Delia Harris’s room as above mentioned; and that he offered evidence of the shooting of Wells by the prisoner, because that shooting and the killing of Delia Harris were parts of one entire transaction, and the fact of the shooting and the circumstances attending it were parts of the same chain of evidence, indissolubly linked with the other evidence in this case, especially with the bowie knife and the scabbard found and identified as aforesaid, and necessary as well to identify the prisoner as the person who inflicted the mortal blow on the said Delia Harris, as to shew the deliberation and the animus with which the prisoner inflicted the said mortal blow on her. The prisoner’s counsel still objected to the admission of any testimony touching the shooting of Wells by the prisoner, without, however, objecting to any evidence about the bowie knife and the scabbard thereof: but the court overruled the objection and declared the evidence admissible ; to which opinion the prisoner excepted.

MV. After the verdict had been rendered, the prisoner moved the court to set the same aside and award him a new trial, upon the ground that Martha Gilliam, who had been examined as a witness for the commonwealth, was a mulatto, incompetent by law to testify against a white man; and he introduced evidence to prove that fact. But the court overruled the motion ; being of opinion that at this stage of the case, and under the circumstances thereof, (detailed in the record, but unnecessary to be mentioned here) it would be improper to receive an exception to the *competency*of Martha Gilliam; and not being satisfied upon the evidence, if proper now to be introduced, that the said Martha Gilliam is thereby proved to be a mulatto. To which opinion the prisoner excepted.

V. After the verdict had been rendered, the prisoner moved the court to set the same aside and grant him a new trial, upon the ground that Charles Bates and Daniel P. Howie, two of the jurors who tried the cause, had formed and expressed decided opinions against the prisoner, of which he had no knowledge until since the verdict was rendered. The said jurors, when called as such, were sworn to answer questions touching their competency as jurors, and severally deposed that they had not formed or expressed any opinion as to the guilt or innocence of the prisoner, and were accepted by him. And now the prisoner introduced two witnesses, James Williams and William Morris, against whose respectability no imputation was made, whose testimony was as follows, 1. James Williams deposed that he was at the house of the juror Bates before the trial of this cause, and Bates told him that “he had been to the scene of the alleged murder the day after the death of Delia Harris, and there saw her mangled corpse, and if Heath was guilty of the murder he ought to be hung, as ought any other man who would commit such a murder;” and also said that "‘from the statements which *he had heard at the place” (where he saw the body of Delia Harris) “he believed that Heath” (the prisoner) “was guilty of the murder;” and in the same conversation Bates said that Heath ought to be hung. This conversation occurred on the Sunday after the murder, which was committed friday night. 2. William Morris defiosed, that a day or two before the trial of this cause, he heard the juror Daniel P. Howie say to Benjamin W. Green, near the courthouse, (which said Benjamin W. Green stood indicted in this court for embezzling the money of the bank of Virginia)—“Green, I would take your place for eighteen pence, but as to that fellow Heath, he ought to be hung, and, damn him! if I was on his íjury I would hang him:” and the said Howie then left the witness, and came up the steps into the courtroom.

The court overruled the said motion, and refused to grant the prisoner a new trial; and he excepted.

And now, on his petition, the general court awarded a writ of error to the judgment of the circuit court.

The cause was argued here by Heigh and Dyons for the plaintiff in error, and the attorney general for the commonwealth.

*

Criminal Law—Jurors—Preconceived Opinion.—See *foot-notes*to Com. v. Hailstock, 2 Gratt. 564, and Shinn v. Com., 32 Gratt. 901.

The principal case is cited in State v. Baker, 33 W. Va. 324, 10 S. E. Rep. 641.

See monographic *note*on “Juries” appended to Ohahoon v. Com., 20 Gratt. 733.

†

 Same—Same—Challenging Jurors.—A new trial will not be granted in a criminal case for matter that Is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which 'could not have been discovered before the juror was so sworn by the exercise of ordinary diligence; unless it appears that the prisoner suffered injustice from the fact that such juror served upon the case. State v. Greer, 22 W. Va. 824; State v. McDonald, 9 W. Va. 465; State v. Hobbs, 37 W. Va. 826, 17 S. E. Rep. 385; Sweeney v. Baker, 13 W. Va. 228; Dilworth v. Com.. 12 Gratt. 698; Bristow v. Com., 15 Gratt. 646. All the above cases cite the principal case for this proposition.

See *foot-notes*to Dilworth v. Com., 12 Gratt. 689, Com. v. Hailstock, 2 Gratt. 564, and Bristow v. Com., 35 Gratt. 634.

See also, Beck v. Thomson, 31 W. Va. 459, 7 S. E. Rep. 447; State v. Strauder, 11 W. Va. 745; Zickefoose v. Kuykendall, 12 W. Va. 23; Jones’ Case, 1 Leigh 598.

DOM AX, J.,

delivered the opinion of the court.—The court deems it unnecessary to express the results of its deliberation upon ' all the numerous points suggested as errors j in this record, the majority of the court j being well satisfied that upon one of I those errors, without deciding upon the ’ others, a new trial must be awarded. The j total interdiction on the part of the circuit j court, after the answer which had been given by the juror Richard Malone touching his competency, of all further question to be put by the prisoner’s counsel to the said juror, and the peremptory decision, excluding all further enquiry, that the juror was competent, are deemed by a majority of this court to be clearly erroneous. *Whilst the court refrains from expressing an opinion upon the ques*448tions as to the competency of the jurors Royster, Fisher and Haxall, it unanimously reaffirms the doctrine laid down in Osiander’s case, 3 Leigh 780, and Armistead’s case, 11 Leigh 657. The court cannot now attempt to give greater precision to the principles there laid down. The application of the rules which are to be deduced from those principles must be left to the discretion of the judge, according to the varying circumstances of each particular case.

This court, however, does not intend to countenance a deduction which was attempted to be drawn from those cases by the prisoner’s counsel, and much insisted on in argument; namely, that the formation of legal opinions upon facts which have previously been presented to the juror’s mind, renders him equally as incompetent as the formation of previous convictions upon his mind in respect tp the facts of the case. On the contrary, the court thinks that a knowledge of the law, instead of disqualification, would be a recommendation of the fitness of the juror. And although a juror may have taken up some misconception of the law of the case, the instruction of the court can be resorted to for correcting his error, and affording him a standard by which the law may be ascertained; whereas in regard to facts, there is no other standard but the opinions of the juror himself.

In regard to the evidence filed after the verdict, to fix disqualification upon two of the jurors who had rendered that verdict; whilst this court is of opinion that an enquiry was open, and such evidence was admissible, for the purpose of shewing perjury and corruption in those jurors, it is farther of opinion, that it belonged properly to the judge who presided at the trial to decide upon that evidence, and that it was for him exclusively to weigh the conflicting credibility of the witnesses and of the jurors, and to determine whether, in ^'justice to the prisoner, and upon all the circumstances of the case, a new trial ought or ought not to be awarded. Upon this point, reference may be had to the doctrine stated in Jones’s case, 1 Leigh 617.

In regard to the judgment of the court overruling the prisoner’s objection to Carter Wells’s testimony touching the shooting of Wells by the prisoner; the court is of opinion that the bill of exceptions in this particular is defective, in not proceeding to state what was the evidence which was given by the witness upon the subject. But without resting the judgment of the court upon the defectiveness of the bill of exceptions in this respect, this court is of opinion that the objection which was made is unsustainable, and that the fact of the shooting, as being a part of the circumstances and of the res gestae; ought not to have been precluded from being given in evidence, to the jury, although such evidence might itself have tepded to prove a distinct felony committed by the prisoner.

The court deems it unnecessary to express any opinion upon the matters stated in the record as to the evidence which was given by Martha Gilliam; because the same matters are not likelj' to be presented in any future trial of the case.

Judgment reversed, and new trial awarded.