Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-12-13

tWVIU 10 perform tNat uo''s
jority OF the court held in that case tnas
Il was ex-ofY,cto the duty OF the Sherir
TO keep the fury and that II was nov
,indispcnsablyi necessary that ne snou'u
be sworn, though II was senerahy "ohe
out OF abundant caution.
The form OF a record of the proceeo-
ings In court In a felony case az COM
mon law Is given by Chilly IN nus "orN
on criminal law. at page 1D, ana ~ y
also given in the appendix to Vol: III. Oh
Chitty's Blackstone Some OF the pro-
ceedings. which are noticed In that form
are no longer required, whilst others not
contained therein are now made ESSEN
tial.
II will be observed In the form given
nv Chilly that there Is no. notice taken
of the jury during the progress OF the
trial The reason, no doubt, was mat,
after the jury were sworn. the court
proceeded with the trial without adjourn
ment until 1t was ended.
ADJOURNMENT WAS ALLOWED.
In the case of King vs. Stone. reported
in 6 Tum. Rep, 527-3l, 1t II stated that
THE court having set on the first day
Of the trial from 3 o'clock I'm the morn
ing till 10 o'clock at night without eny IN
terruption or refreshment. and the At
torney-Generai stating that his evidence
OF the jury being very much exhausted
and incapable, as they declared. OF Keep
ing up their attention much longer. the
court adjourned until . o'clock the next
morning-Tord Kenyon observing that ne
cessity justified what II compelled, ana
that though II was left TO modern times
10 bring forward cases OF such extraordi-
nary length, yet no rule could compei the
court to continue longer sitting than their
natural powers would enable them 10 90
the business OF it," He allowed the jury
10 retire and entered the following order:
''Forasmuch as II appears to the court
here from the length OF time which mas
been already occupied by the trial or the
issue Joined upon the Indictment ana the
further time which Will be necessarily
occupied by the same that justice cam
not be done III this court proceed without
intermlssion upon the said trial, IL IS
ordered that the jury impanelied ana
sworn to try the said issue have leave 10
withdraw from the bar Of this court. pc
ing we'll and truly kept by SIX pslhHs'
duly sworn not TO permit any person 10
speak to them touching any matter feia-
tive to the trial of this issue; and That
the same jury shall again come 10 the
bar of this court on tomorrow at O'CLOCK
in the forenoon"
Since that time this seems TO have been
the practice in England. and 1t has been
the practice in this State from an early
day.
THE PRACTICE IN VIRGINIA.
Mr.. Robinson. in his old practice, Vol
ume g. page 2i6. published in 1899. says:
when the jury in case OF felony
cannot fully hear the evidence ana the
arguments OF counsel on the day mat
they are empaneIled. the practice IN VIZ
ginia is TO commit them To the CUSTODY OF
the Sheriff. or other officer, who is dlrect-
ed to keen them together without conf
munlcation with any other person. ana 10
cause them to appear before the court
at the hour 10 which IL adjourns. Al the
time of 80 committing the jury 10 the
custody OF the officer IL Is usual 10 admin
lister an oath 10 the officer 10 the Follow
ing effect: You shall well and truly 10
the best OF your ability keep TINS jury
and neither speak to them yourself, nor
suffer any other person 10 speak 10 tneih
touching any matter relative 10 TINS 'ilab
until they return into this court The
record i'm Kennedy's case, Virginia
cases SO, decided i'm 1876, i'm Mandum's
case. Rand, 7Oi. as is stated in Ben
nett's case s Leigh, 7i5 decided y 1851.
showed this to be the practice. except
that the record in those cases failed 10
show that the Sheriff in whose custody
the Jury were placed was sworn.
We have examined records in capital
cases Of recent date, now on lille In the
Clerks office of this court, and ma thal
they show that the jury at each ADJOURN
ment Of the court was placed In the
custody Of the Sheriff or other proper ON
Ger. with instructions not TO speak TO
them himself, nor TO allow any one else
TO speak TO them touching the trial We
4. III. hal a
he settled practice in this state.
THE VERDICT SET ASIDE.
This practice is based upon that prn-
ciple of the common law that the accused
in every felony case was not only entitled
10 a Jury free from exception, when en-
| panelled TO try his case, but that he had
the right to have them remain so until
| their verdict was rendered by keeping
| them free, as far as possible, from all
extraneous influences.
! We think II may be safely said that any
| practice, 80 salutary and wise, and sc
| admirably calculated to protect and in
| sure the rights and interests of both the
| accused and the Commonwealth in felony
| cases, and which has been uniformly pur-
| sued for a great length of time. ought to
be regarded as showing what the law Is
on the subject
|
the record In capital case shows thai
the Jury were adjourned from one day
TO another, II ought also to show tina
upon such adjournment they were com
mitted to the custody of the proper officer
with instructions not TO speak TO then
himself. nor 10 allow any one else 4
speak TO them touching the trial Of tbs
case in which they are engaged.
AS the record in this case fails 10 show
this, the Judgment OF the trial court mus
be reversed. the verdict set aside, and
new trial awarded.
Judge RELY DisseBts.
Judge Rely handed down the follow
ing dissenting opinion:
IL concur i'm all OF the opinion excep
that part which holds that where upol
the trial of a capital case the jury ar
adjourned from one day to another, tn
record should show that the jury. upo
such adjournment, were placed in the Gus
tody of the proper officer. with instruc
tons not to speak to them himself no
| allow any one else 10 speak to ther
touching upon the trial of the case. Fror
that j am constrained to dissent.
IL a proper and well-established practic
that the jury, upon an adjournment
should be placed in the custody of IN
proper officer and kept together. FIRE
from all extraneous influences; but 1t
not necessary part OF the record I
sustain the judgment. IL is in my opr
ion not one Of the essentials OF IN
record which should affirmatively appeal
but is one of the incidents of the tris
that this court should presume was regr
lar unless the contrary appears.
should be presumed that the Court
the conduct Of the trial proceeded order
ly and in the usual way, unless the cor
trary appears by the record or was mad
| en- IN opneor nv some anpropriate nroceed