Richmond.

#### Hoback v. Commonwealth.

January 18, 1906.

1. Criminal *Law*— Venire *Facias*— Who *to Furnish Names*— Effect *of Quashing*— Second, *Writ*— Procedure—Irregularities—Code *(1904), 8ecs. 4018, 4019.*— A circuit court judge wrote to tbe clerk “to summon thirty first-class men for the first day of the term to serve as venire men.” The clerk drew from the box provided by law the names of thirty persons, and issued a writ of *venire facias,*directing the sheriff to summon thirty persons of his county to be taken from a list furnished him by the judge of the court, and attached the list. The sheriff executed the writ by summoning the persons named. On the trial of a felony case, when this venire was called, the prisoner moved to quash the writ, and the court quashed it. The court then issued a second writ of *venire facias,*directing the sheriff to summon sixteen persons of his county from a list furnished him by the judge. To this writ was attached a list containing the names of sixteen persons taken by the judge from those summoned under the first writ, which had been quashed. The prisoner moved to quash this writ, but the motion was overruled. Not having secured a panel from these sixteen names, a third writ of *venire facias*was issued, summoning two additional persons whose names were taken by the judge from those present in response to the first writ, which had been quashed. The prisoner moved to quash this writ, and the list accompanying it, but the motion was overruled.

*Eeld:*

1. The first writ of *venire facias*was properly quashed, as the law requires the list to be furnished by the clerk issuing the writ and *not by the judge,*and, furthermore, the method of drawing was irregular because, when more than twenty are ordered to be summoned, the law requires that the judge shall specify the number of names to be drawn and the number of persons to be summoned, and provides that the number drawn shall not be more than four in excess of the number summoned.

*8722. When the first writ was quashed it was as though it had never existed, and the court was without a jury present from which to select a panel. The list was a part of the writ and when the writ was quashed, the list was annulled also.

3. The second writ should have been quashed also, as a person accused of a felony is entitled to a jury of twenty persons, to he drawn hy the clerk or his deputy according to law, of whom sixteen must be summoned, whereas the writ contains the names of only sixteen persons not drawn at all, hut furnished by the judge as above indicated. When the first writ was quashed the court should have proceeded *de novo*to have a jury drawn and summoned according to the provisions of Oode, 1904, See. 4018. He had no panel to complete, and hence no right to summon by-standers. The conditions provided for by Code (1904), Sec. 4019 had not arisen.-

4. The provisions of the statute in respect to impaneling juries in felony cases are not directory merely, hut mandatory. In this case each of the writs directed the sheriff to summon persons from a list to be furnished by the *judge,*contrary to the mandate of the law, and hence was no process at all.

5.- It is immaterial whether the prisoner is guilty or innocent. He is entitled to a fair and impartial trial in the mode prescribed by law, and has not had it.

"6. The last paragraph of section 4018, Code 1904, relating to certain irregularities or errors in drawing, summoning, impaneling, etc., of juries in criminal cases was never intended “to cure or relieve the fundamental error in the mode of selecting the jury which tried the prisoner, and has no application to such ease.

7. The prisoner was tried by a jury selected by the judge without authority of law, has been deprived of the drawn jury prescribed by the statute, which'vras his right, and hence has not had that fair and impartial trial guaranteed to him by the law.

Error to a judgment of tbe Circuit Court of Eloyd county in a prosecution for a felony.

*Reversed.*

The opinion states' the case.

*Archer A. Phlegar*and *J. G. Wysor,*for the plaintiff in error.

*873*Attorney-General*Wot. *A. Anderson*and *B. L. Jordan,*for the Commonwealth.

HarrisoN, *J.,*

delivered the opinion of the court. ■

The plaintiff in error was found guilty of murder in the second degree, and sentenced by the Circuit Court of Floyd county, in accordance with the verdict of the jury, to penal servitude for a term of eight years. To this judgment a writ of error was awarded, bringing the case before us for review.

It appears from the record that the judge appointed to hold the court at which the prisoner was tried wrote to the clerk of the court to summon “thirty first-class men for the first day of the term to serve as veniremen.” Upon receipt of this letter the clerk drew from the box provided by law the names of thirty persons, and with these names attached thereto issued a writ of *venire*facias, addressed to the sheriff, in these words: “We command you, that you summon and cause to come before the Circuit Court of the county of Floyd, at the courthouse, on the 17th day of July, 1905, (being the 1st day of July term of said court), thirty persons of your county, to be taken from a list furnished you by the judge of said court, who are qualified, &c.”

On motion of the prisoner, by counsel, this writ was properly quashed, it being, on its face, in direct contravention of the express mandate of the statute, which requires that “the writ of *venire*facias, in case of a felony, shall command the officer to whom it is directed to summon sixteen persons of his county or corporation, to be taken from a list *furnished him, by the clerk issuing the writ,*who are qualified, &c.” Ya. Code, sec. 4018.

' In addition to the .error appearing on the face of this writ, *874that tbe thirty persons mentioned were to be taken from a list furnished the officer by the judge, instead of by the clerk, the manner of drawing the persons named was irregular. It is true the judge could have ordered, for good cause shown, more than twenty persons to be drawn and placed in the list, but in such case the law requires that he shall specify the number of names to be drawn and the number of persons to be summoned; providing that the number drawn shall not be more than four in excess of the number to be summoned. Ya. Code, 1904, sec. 4018. These provisions of the law with respect to drawing the jury were wholly disregarded, the letter of the judge to the clerk merely directing him to summon thirty persons, without specifying the number to be drawn, or how many of the number drawn were to be summoned.

After quashing the writ mentioned, the court issued a second writ of *venire facias,*addressed to the sheriff, in these words: “We command you to summon and cause to come before the Circuit Court of the county of Floyd, at the courthouse on this 17th day of July, 1905, being the first day of July term of said court, sixteen persons of your county, to be taken from a list furnished you by the judge of said court, who are qualified, ■&c.” To this writ was attached a list containing the names of sixteen persons, taken by the judge from among those summoned under the first writ of *venire facias,*which had been quashed. Upon this writ the sheriff made the following return: “By virtue of the foregoing writ, I summoned the above named persons from a list furnished me by the judge of the Circuit Court of Floyd county.” Not having secured a panel from these sixteen names, a third writ of *venire facias*was issued, summoning two additional persons, whose names were taken by the judge from the list of those present in response to the first writ which had been quashed. Before the jury thus summoned was *875sworn, tbe prisoner, by bis counsel, moved tbe court to quash tbis writ of *venire facias,*and also tp quash tbe list of jurors accompanying sucb writ, upon tbe ground that it commanded tbe sheriff to summon *sixteen*persons from a list furnished by tbe judge of tbe court! Tbe action of tbe court in overruling tbis motion constitutes tbe first assignment of error.

Tbis second writ of *venire facias*fails entirely to conform to tbe express mandate of tbe statute, which secures to one accused of a felony, a jury of twenty persons, drawn by tbe clerk of tbe court or bis deputy in tbe manner prescribed by tbe statute, and requires that sixteen of tbe number so drawn shall be summoned.

It is contended on behalf of tbe Commonwealth that, although tbe first writ of *venire facias*was quashed, tbe thirty persons summoned under it remained and continued to be a legal list of drawn jurors summoned in compliance with tbe statute; and that when tbe second writ of *venire facias*was issued, it was done in pursuance of section 4019, Va. Code, 1904, which provides as follows: “In any case of felony, when a sufficient number of jurors to constitute a panel of sixteen free from exception cannot be bad from those summoned and in attendance, tbe court may direct another *venire*facias, and cause to be summoned from tbe by-standers, or from a list to be furnished by tbe court, so many persons as may be deemed necessary to complete tbe said panel.'”

Tbis position is, we think, untenable. Mr. Abbott, in bis Law Dictionary, vol. 2, p. 364, defines tbe term “quash” as follows: “To annul, overthrow or vacate by judicial decision.” When, therefore, tbe first writ was quashed, it was annulled, overthrown or vacated; in other words, it was as though it bad never been issued, and tbe court was without a jury present from which to make up a panel. Tbe persons *876present, wbo bad been summoned under tbe first writ, were mere bystanders, and were no longer under tbe control of tbe court. Tbe list was a part of tbe writ, and when tbe latter was annulled by tbe court’s action, tbe former was vacated also. After quashing tbe writ, tbe only course open to tbe court was^ to begin *de novo*and bave a jury drawn and summoned in accordance with tbe provisions of section 4018. When tbe opportunity for a drawn jury, provided by section 4018 bas been given, and jurors summoned, and the panel cannot be completed from that number, then under section 4019 tbe judge, to expedite tbe trial, may select tbe persons to be summoned to complete tlie panel; but section 4019 bas no application in a case like this, where there was no panel to complete. If it were otherwise, tbe valuable rights secured to tbe accused by section 4018 could be wholly disregarded and denied him. Tbe clerk would only bave to issue an invalid writ, tbe court quash it, and then under section 4019 issue a new writ, summoning a jury selected by tbe judge.

As already seen, tbe statute, section 4018 (Acts, 1904, p. 16) expressly provides that tbe writ of *venire*facias, in case of a felony, shall command tbe officer to whom it is directed to summon sixteen persons of bis county or corporation, to be taken from a list *furnished by the derh issuing the writ.*Tbe law in force prior to tbe adoption of section 4018 provided, that tbe *judge*should furnish tbe list; but tbe Legislature saw fit to change this law and to require that tbe list be drawn by *the cleric*in accordance with tbe provisions of section 4018. Tbe letter and policy of tbe statute was to give tbe prisoner in tbe.first instance a drawn panel, and in that way to secure a fair and impartial, jury. • Each of tbe three writs in this case directed tbe jury to be summoned from a list *furnished by the judge.*Neither writ conformed to tbe positive mandate of tbe law, and was, therefore, no process at all.

*877In *Jones’ case,*100 Va. 846, 41 S. E. 952, tbis court, quoting from a prior case, says: “Omission to direct a new *venire facias,*or omission of any statutory essential apparent on the record, is error. . . . These provisions of the statute in respect to impaneling juries are not directory merely, but imperative. They are rules which are made essential in proceedings involving life or liberty, and it is the right of the accused to demand that they be complied with. To disregard them is to deprive the accused of that due process of law which is provided by the Legislature, and which is required by the fundamental law of the land.” Further, on p. 847, it is said: “This the statute requires, and if one of the formalities which it prescribes may be disregarded, all may be set at naught.”

The argument at bar has been elaborate to show the guilt of the prisoner, but if that fact was established with ever so much certainty, it would furnish no ground for removing any bar which the law has erected to protect the accused. The right of the guilty man is exactly the same when on trial as that of the innocent person, and his right to go unpunished until he is formally convicted, after making every defense to which the innocent are entitled, is one of the main pillars whereon rests our liberty and security in the pursuit of happiness. The guilty man is entitled to be convicted according to law, or in default thereof be acquitted. Hence it is, says Mr. Bishop, “that before any person can be made to suffer for a crime, he must be caught and held in the exact meshes which the' law has provided; or, in other words, he must be proceeded against, step by step, according to the rules ordained by the law. It is of no avail to pursue him in a way indicated by better rules; the law’s rules must be applied, or the law’s penalty cannot be imposed.” 'Bishop’s Crim. Pro., sec. 89; *State*v. *McCormick,*84 Me. 566, 24 Atl. 938; *Hatch*v. *State,*8 Tex. Ap. 416, 34 Am. Rep. 751.

*878This learned author further says: “A court inquiring after the regularity of its proceedings, never asks whether or not the defendant is guilty.” . Sec. 92. And in section 93 he says: “The function of human law is merely to conserve the outward order of society. And a p.art of this order, not less essential than any other, consists in adhering to the exact methods which the law has laid down for bringing criminals to justice.”

The learned Attorney-General, on behalf of the Commonwealth, insists that the act of February 10th, 1904, (Va. Code, 1904, sec. 4018) was designed to modify the rule in *Jones’ Vase, supra,*and to make all of the provisions of the act, as to drawing names, making out and signing the list and summoning persons named on the list, *directory.*In support of this contention the last paragraph of section 4018 is relied on, which is as follows: “No irregularity or error in drawing the names, or in making out, or copying, or signing, or failing to sign, the list, or in summoning the persons named on the list shall be cause for summoning a new panel, or for setting aside a verdict or granting a new trial, unless objection thereto was made before the jury was sworn, and unless it appears that such irregularity, error, or failure was intentional, or is such as to probably cause injustice to the Commonwealth, or to the accused.”

The first writ having been quashed, and everything done in pursuance of it having, as already seen, fallen with it, neither the writ nor anything done under it could possibly contribute to the support of the second writ of *venire facias.*That writ must stand upon its own merits or fall by reason of its_ demerits. It was under this second writ alone that the persons who tried the prisoner were obtained. Before the jury thus summoned was sworn the prisoner made his motion to quash the writ, not because of any irregularity or error in drawing the names, for *879none bad been drawn after tbe first writ -of *venire facias*was quashed, nor for any irregularity or error in making out or copying or signing or failing to sign tbe list, or in summoning tbe persons named on tbe list, but because tbe persons summoned were taken from a list furnished *by the judge*and not from a list drawn and furnished *by the cleric,*as required by tbe express mandate of tbe statute.

Tbe last paragraph of section 4018 has no application to tbe conditions here presented, and was never intended to cure or relieve tbe fundamental error in tbe mode of selecting tbe jury which tried tbe prisoner. If tbe paragraph relied on were given the ..operation suggested, it would render nugatory all tbe preceding part of sec. 4018 which prescribes the.method of drawing and summoning a jury in a felony case. That tbe jury shall be drawn and furnished by tbe clerk, and not selected by tbe judge, is mandatory, and tbe court is powerless to deprive the accused of that right.

It seems to be thought that because tbe judge selected *the*names to be summoned from among those who bad been summoned under tbe quashed writ, tbe prisoner has been done no injury and therefore has no right to complain. To this contention wre cannot give our assent. It was a jury selected by the judge, which the law forbids. If the judge had selected the panel to be summoned under the second writ from any other by-standers or from among names in the box, it would have been equally as lawful as selecting such panel from among the thirty persons brought together by the first writ of *venire*facias, which had been declared null and void.

This is not, as suggested, a technical view of this matter. Jurors as triers of the fact, wield far more power than the judge on the bench, in the trial of an accused person, and the Legislature has seen fit to safeguard the rights of the Common*880wealth and the accused by the enactment of a mandatory provisions for the constitution of this important branch of the judicial system, which the courts are not at liberty to disregard, even if they deemed it expedient to do so.

Our conclusion is that the plaintiff in'error has been tried by a jiiry selected by the judge without authority of law; has been deprived of the drawn jury prescribed by the statute, which was his right; and, therefore, has not had that fair and impartial trial which is guaranteed to him by the law.

The questions raised by the other assignments of error will not necessarily arise again, and, therefore, they are not dealt with in this opinion.

For these reasons, the judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for a new trial not in conflict with the views expressed in this opinion.'

*■Reversed.*