Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-12-02
Juror than the tboughtIess remark re
f.rred IN ~


fiicticn Of the ceath penalty. Unless. then,
his views ne 10 the way In which circun-
stsntal evidence should be regarded are
wrong, be was a competent Juror. That
bis views on this subject we're not wrong
seems clear from the following quotations
In Alghin as. State, 25 Miss. r., 5Sf, the
High Court 0f Errors and Appeals OF that
State held First. that IN the application OF
circumstantial evidence TO the determina-
uon OF a case the utmost caution and vigil
lance should be used; second, that It's al
ways insufficient when assuming all 10 be
proved v bich the evidence tendfto prove,
some other hypothesis may still beirue, Tor
10 il the actual exclusion OF every other by
poibesis which invests mere circumstances
with the force Of truth; and third. thai
where the evidence leaves IL indifferent
which Of several hypothesis is true or es-
tablishes only some finite probability In
favor Of one hypothesis, such evidence cam
not amount TO proof honeuer great he Prooa.
Jiity may be. The second and third OF
these propositions. says Moncure, r.,
speaking for the whole court In Johnson's
case. 90 Graft, S11, were literally taken
from starkie on Evidence, 5I2, and cor
rcctly expounded the law. Ia Deans case.
| 80 Graft, gl2, this court held, as the syIla-
tial evidence must always be scanned
with great caution. and can never
Justify verdict OF guilty-espeeially
Of murder IN the first degree, the
penalty of which is dcath--unlcss the
circumstances are OF such character and
tendency az 10 produce upon fair and un-
prejudiced mind a moral conviction OF thc
guilt Of the accused beyond all 'reaSonabr
doubt. And In that case Christian, j..
speakinC for the Court. said: awe ar
psinfully aware that this Is a case OF purely
circumstsniisl evidence; and we have
therefore given TO IL the most careful ana
anxious consideration. And, looking with
the closest scrutiny 10 all the facts and cir
cnmstances proved, we find them, when
combined, utterly inconsistent with the IN
noccnce Of the accused, but consistent with
no other reasonable hypothesis but that OF
his guilt. When these things concur the
force OF circumstRntial evidence becomes
as potent as that on direct evidence"
And Wills, in his book on circumstantial
evidence. quotes with approval the lam
gnage Of Mr.. Justice Bayley, in Rex as.
Downing. that "wbere there is nothing
but the evidence OF circumstances TO guide
you, those circumstances ought TO be closely
and necessarily connected, and TO be made
as clear as II there were absolute and posi-
tive proof
Such being the law in cases OF this charac-
ter, It must he perfectly apparent to every
unprcjudiced mind that Larke was COM
petent Juror that he thoroughly under
stood the temper in which juror should
consider case supported by evidence
purely circumstantial. and that such was
the peculiar frame OF his mind that he was
especially fitted TO act as juror in cases OF
that kind.
Ii is q matter OF utter impossibiity TO
accurately estimate or ascertain the value
Of such q Juror in such ease. especially II,
as usually happens, the feelings of the pub.
! he are deeply aroused against the supposed
perpetrator Of the crime. The exclusion OF
| such a person from the jury Is manifest
error to the prejudice OF the prisoner, aud
accordingly, we find II, as we would nltu-
rally expect, laid down in Moniague's case,
| that in every such case IL is unnecessary TO
| INQUIRE whether The prisoner has been pre-
| judiced bv the illegal exclusion OF the
julor. "becnuse In the Oplni0h OF this
court, where any legal right has BEEN
denied TO party on trial for a criminal OF
ftnCe. any Of the safeguards thrown around
| him by law for his protection has been dis
regarded, il Is not for this court to say what
might or might not have been the effect
uDOn the case OF the accused, bot Will re-
verse the judgment and remand the ease
| for anew trIal. And II ii be necessary TO
| enable him 10 exercise his right TO have
| the Judgment Of the court reviewed in the
appellate tribunal, the law will intend
I preiudIce, and will hold IL impossible in
! such case 10 say that fair and impartial
tri9l has beer had" And such Is the sell
tied law Of this state ever since thai case
IL il, however, coDtended that II the court
did not have the right to exclude L1rkt
from serving as a juror upon this ground
! that If did have the right TO discharge him
/ because, after he had been challenged b.
( the state. he stated 10 the court that he wa
| over sixty years Of age that he had not re-
! membered il when examined on hls p0ir
| dire, and that IL IL was not nov too late he
/ claimed his exemption from service on the
/ Jury on that ground. And such was my
/ first impression, but subsequent reflection
has satisfied me that was entirely mistaken.
I Larke's right t0 be exempted from jury
duty on this ground was purely personal
privilege. which he had the right te eXer-
/ else up to the time that he was accepted by
( the court. BY his failure To claim his eX-
! emptiOn before be was accepted think he
waived his right. Logically his right TO
exemption ceased when the court ac.
/ ccpled him, and his subsequent effort TO
get the benefit Of an exemption which he
had vayed did not constitute such a cause
a. The court had the power 70 discharge Il
Juror for. But, besides this, it is certainly
a wtll.recognzed principle Of law that
courts even while exercising their admitted
functions, muSt.so exercise them n not I'M
necessarily TO prejudice the rights OF the
accused. In this ease IL distinctly appearS
thut This juror was discharged in the pres
once Of at least four persons who hld been
examined on their rOir dire. and who sub
sequently served Us part OF The jury with.
Olit indicating, 20 far rs tins record shows,
the ground 81 his di>mNsi0n. Under these
circumstances il was the duty OF the court
te have stated the ground upon winch
he was discharged. The failure 10 do so
was certainly well calculated to mIslead at
least these four iurymen, il not others who
NAV have been present.. Because, Tor
auebt that appears, each OF those persons
might well have supposed thai Larkc was
DISCHARGED not because OF hi. claim 10 be
exempt from jury duty, hut because OF the
csIt,on with which il was evident he re-
garded clrcumStantial evidence, and TINS
NAV hsve caused them TO scan less closely
the circumstances OF the case and II attach
more importance to those circumstances
lion Trey would otherwise have done. To
say Tie least, II is highly probable that the
prisoner has been prfIudlced by the flliure
of The court 10 state the ground upon
which he rejected the juror, and equally
probable. nay certain, In my judgment,
that pers on was excluded from the jury
that tried the case who was emnentiy quali-
fed 10 serve as juror in just such case
as this is. In Montague's case, 10 Graft,
700, this court reversed the judgment be-
cause il appeared that the lower court had
discharged a Juror because, being neigh
Dor OF the wife and family al the pri.
soner, who lived on the lot adjoining
his residence, he stated 10 the court
that be was unwilling 20 trust himsli under
the circumstances, there being great iDti-
macy between bis and the prisoaer'sfimily,
although the juror stated at the same time
that be had no prejudice for or against the
nrisOner, and could render a fair and i'm
Partial verdict on the evidence which
might be sdduced. In that case the court
held that while the trill-court may examine
a Juror on oath, and In the exercise OF
sound discretion discharge him, yet that II
II shall appear that the court errone0sSIy
exercised its discretion in dischargIng such
Juror without good and sufficient cause,
that 10 IL matter OF exception on the part
Of the accused, for which the judgment OF
that court should be reviewed and reversed.
Ard so | hold here upon what conceive
TO lie very much stronger ground.
But four cases are specially relied upon
hy The attOrDeys for the Commonwealth In