Act of January 7, 1819—January 1, 1820. R. C. ch. 75. to the commonwealth, for the use of the literary fund. 1748; 1792, c. 73, R. C. 4. 6. Every freeholder summoned to appear on a grand jury as aforesaid, and failing to attend, not having a reasonable excuse, shall be fined by the courts, respectively, not exceeding eight dollars, unless good cause be shewn to the contrary, at or before the next court, to be paid to the commonwealth, for the use of the literary fund. Ibid. Oct. 1, 1677, 2 Stat. Larg. 407. 5. § 7. Grand jurors shall be privileged from arrest in all cases, except treason, felony and breaches of the peace, during their attendance at court, coming to and returning from thence, allowing one day for every twenty miles from their places of abode; and all such arrests shall be void. Ibid. 6. § 3. An oath in the following words shall be administered to the foreman of the grand jury: You, as foreman of this inquest, shall diligently enquire into, and true presentment make of all such matters and things, as shall be given you in charge, or otherwise come to your knowledge, touching the present service;(a) you shall present no person through malice, hatred or ill will; nor shall you leave any unpresented, through fear, favour or affection, or for any reward, hope or promise thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God. 1792, c. 73, R. C.(d) 7. § 4. The following oath shall be administered to the other jurors. The same oath, that A. B., your foreman, hath now taken before you on his part, you and each of you shall well and truly observe and keep, on your respective parts. So help you God. Ibid. 8. 9. In case of the sickness, death, or non-attendance of any grand juror or grand jurors, after he or they shall be sworn, it shall be lawful for the court to cause others to be sworn in his or their stead. Mar. 1781, c. 9, 10 Stat. Larg. 401, and Ibid. Svery such grand jury for a superior court of law, or for the inferior court of a county or corporation, shall and may present all offences made penal by the laws of this commonwealth, although the recovery of the fines for such offences shall be otherwise directed by the laws inflicting the same; except only that no presentment shall be made, in a superior court of law, of any offence, where the penalty inflicted by law is less than five dollars. 1792, c. 73, R. C. [Hereafter no offence, on which the fine imposed by law does not exceed the sum of two dollars, shall be presentable by a grand jury.tt Mar. 3, 1821, c. 33.] See act Feb. 1727, c. 13, 4 Stat. Larg. 232. this nomination of himself by the grand juror was corrupt, or that there was a false conspiracy between him and the sheriff for returning him on the panel. Held, plea naught, and the court ought not to permit it to be filed. Thompson's case, 4 Leigh, 667. (a) See The U. S. v. Hill et al. 1 Brock. Rep. 156. (d) The words "the commonwealth's counsel, your fellows, and your own, you shall keep," which constitute, with a small variation, a part of the oath in England, were omitted at the revisal of 1792. tt The judges of the superior courts of law shall constantly give in charge to the grand juries of their courts respectively the provisions inhibiting marriages, within certain degrees of relationship, contained in the act reducing into one the several acts to re R. C. gulate the solemnization of marriages, pro- All the courts of law within this common- "An act to amend the act concerning slaves, free negroes and mulattoes." April 7; 1 June, 1831. "An act to amend an act, entitled, 'an act reducing into one the several acts concerning slaves, free negroes and mulattoes, and for other purposes." March 15; July 1, 1832, c. 22, Ses. Acts, p. 20. "An act to amend the several acts con Act of January 7, 1819-January 1, 1820. R. C. ch. 75. 10. § 8. No grand jury shall make presentment of their own knowledge, upon information of fewer than two of their own body; and when they make any presentment, they shall write at the foot thereof, the name and surname of the prosecutor or informer, [See tit. INDICTMENT, No. 6,] if there be one, and the name of the town or county in which he shall reside, with his title or profession, for the more effectual prosecution of such presentment. When a presentment shall be made upon the knowledge of two of their own body, the names of the grand jurors giving the information shall be written at the foot of the presentment; [See Ibid. No. 6,] and when a presentment shall be made on the testimony of a witness called on, either by the court or the grand jury, to give testimony concerning the same, the name of such witness shall likewise be written at the foot of the presentment: [See Ibid. No. 6.] When the grand jury shall have presented all such matters, as come to their knowledge, they shall be discharged. Oct. 1705, c. 32, 3 Stat. Larg. 367; 1792, c. 73; 1795, c. 188, R. C. cerning slaves, free negroes and mulattoes," passed March 11, 1834; Ses. Acts, c. 68, p. 77. "An act to suppress the circulation of incendiary publications, and for other purposes," passed March 23, 1836, in force from and after 1st June 1836; Ses. Acts, p. 44; to be given in charge by circuit courts, The judges of the superior courts of law, and of the county and other inferior courts, shall constantly give in charge to their grand juries the act to reduce into one the several acts and parts of acts to prevent unlawful gaming. ́Jan. 18, 1819, R. C. c. 147, P. 561. It shall be the duty of the judges of the circuit courts and the county courts, to give in charge expressly to the jury [grand] all the laws in force to suppress duelling; also to charge the jury to present &c. See ante, tit. DUELLING, P.. 296. "An act to suppress duelling." R. C. c. 157, p. 583. "An act to amend an act, entitled, an act to suppress duelling.'" March 1, 1831, c. 37, Ses. Acts, P. 103. The act to reduce into one the several acts for regulating ordinaries and houses of private entertainment, and for the restraint of tippling houses, Feb. 22, 1819, 2 R. C. ch. 240, p. 279, shall constantly be given in charge to the grand juries of the county and corporation courts, and the superior courts of law; and act April 13, 1 May 1831, c. 59, p. 130; and act of Feb. 27, 1 May 1832, c. 24, Ses. Acts, p. 24. The judges of the superior courts of law, and the justices of the county and corporation courts, shall constantly give in charge to the grand juries impanneled and sworn in the said courts respectively, the act to prevent the sale of foreign lottery tickets within this commonwealth. Feb. 11, 1825, Ses. Acts 1824-5, c. 22, p. 21; Feb. 28, 1829, c. 3, § 4, p. 7. "An act to suppress lotteries in this commonwealth," passed Feb. 25, 1834, Ses. Acts, c. 69, p. 81. The judges of the superior courts of law, and the presiding justices of the several inferior courts of law in this commonwealth, shall constantly give in charge to the grand juries of their respective courts, the act more effectually to prevent the circulation of notes emitted by unchartered banks. Feb. 24, 1816, 2 R. C. ch. 208, p. 111. And the act to amend said act of Feb. 22, 1820, Ses. Acts 1819-20, c. 8, p. 9. And the act to amend said last mentioned act of March 3, 1821, c. 36, Ses. Acts 1820-1, p. 36. An act to prohibit more effectually the circulation of small notes, passed April 3, 1838, Ses. Acts, c. 107, p. 80, to be given in charge by circuit superior courts and county courts. The act to provide for the more effectual punishment of certain offences, Feb. 14, 1823, shall be constantly given in charge to the grand juries of this commonwealth; ch. 34, Ses. Acts 1822-3, p. 36. 236 The duty of the judge of each superior court of law, and of the several county and corporation courts in this commonwealth, to give in charge to the grand juries in their courts respectively all the laws relating to the duties and prescribing the fees of the several clerks of the superior and inferior courts of law and chancery. Act March 3, April 1, 1827, c. 22, Ses. Acts, p. 19; April 8, 1831, c. 23, p. 80; March 15, 1832, c. 68, p. 49; March 7, 1834, c. 3, Ses. Acts 1833-4. An act amending the several acts concerning the taxes on licenses to merchants and others, passed Feb. 29, 1828, ch. 3, Ses. Acts 1827-8, to be given in charge to the grand juries at the second quarterly terms holden annually in each county or corporation. Amended by act Feb. 28, 1829, c. 3, § 1, p. 6. An act regulating the manner of granting licenses to retail ardent spirits, and for other purposes. April 13, 1 May 1831, c. 49, Ses. Acts 1830-1, p. 130; Sup. R. C. p. 249. An act to amend the act, entitled, an act to prevent the burning of the woods, passed January 16, 1802; passed March 6, 1835, c. 65, Ses. Acts. p. 46. An act concerning jailors, and for other purposes, Feb. 12, 1823, Ses. Acts 1822, 3 c. 30, p. 31; Sup. R. C. 203, to be given in charge by superior courts. Act of January 7, 1819—January 1, 1820. R. C. ch. 75. 11. § 10. For the trial of all cases in the superior courts, and in the county and other inferior courts, where a jury may be necessary, the sheriff or other officer, attending such courts respectively, shall, every day the court sits, summon a sufficient number of bystanders, or others, qualified as hereinafter is directed, to attend the court that day, that out of them may be impannelled sufficient juries for the trial of causes depending in such courts; and if any person so summoned, shall fail to attend the court accordingly, he shall be fined eight dollars, to be paid to the commonwealth, for the use of the literary fund. See March 1642, act 57, 1 Stat. Larg. 272; March 1645-6, act 10, Ibid. 313; March 1657-8, act 64, Ibid. 463; March 1657-8, act 91, Ibid. 474; March 1661-2, act 37, 2 Stat. Larg. 78; 1792, c. 73, R. C. [See ante, p. 260, Nos. 17, 18, 19] 12. § 11. When any superior court of law, during term time, shall deem it necessary to secure the attendance of fit jurors, on any subsequent day of the same term, it shall be lawful for such court to make an order, directing the sheriff or other officer to summon any number of jurors not exceeding twenty-four, to attend the court on such subsequent day; and if any person so summoned shall fail to attend the court accordingly, without good cause therefor, he shall, in like manner, pay a fine to the commonwealth of eight dollars, for the benefit of the literary fund. Rev. 1819. 13. 12. No person shall be capable to be of a petit jury for the trial of treason, felony, breach of the peace, misprision of treason, breach of the penal laws, or any pleas of the commonwealth, or of any estate of freehold, or estate or title in or to lands, tenements or hereditaments, in any court of record in this commonwealth, or to be a juror in any case whatsoever depending in any of the superior courts of the commonwealth, unless such person be a freeholder, (a) and possessed of a visible estate, real or personal, of the value of three hundred dollars at the least. No person shall be capable to be of a jury for the trial of any cause whatsoever, in any county court, or other inferior court, unless he be possessed of a visible estate, real or personal, of the value of one hundred and fifty dollars at the least. No person, under the age of twenty-one years, shall serve as a juror. No sheriff or other officer shall, at any time, summon or return any juror not qualified as this act directs: Provided always, That no exceptions against any juror, on account of his estate, or age, or any other legal disability, shall be allowed after he is sworn.(1) 1748; 1792, c. 73, R. C.(2) A person called to serve as a juror in a criminal case, being examined on his voir dire, first says he is not a freeholder, but soon afterwards, before the panel is completed, returns into court and says he was mistaken; that he had been reminded of his mistake by a friend, and that he is a freeholder; the court holds him a good and lawful juror, and then the prisoner challenges him peremptorily. Held, the court was right in permitting such correction of the first mistaken statement, and in holding him a good and lawful juror. Hendrick's case, 5 Leigh, 707. (1) If a man that is one of the indictors be returned upon the petit jury, and do not challenge himself, he shall be fined. 2 Hale, 309. (2) Members of all incorporated fire companies within the city of Richmond and town of Portsmouth, are exempted from serving as petit jurors in any civil case whatever. Act April 2, 1838, Ses. Acts, p. 68. Firemen regularly enrolled as members of the Richmond fire association, and discharging their duties as such, are also exempt. Act of March 29, 1839, c. 196, p. 141. And members of all incorporated fire companies in the borough of Norfolk are exempt by act of March 6, 1840, c. 49, p. 44. The superintendents and servants in the employment of the lunatic asylums of this commonwealth, are likewise exempt from serving on juries. Act of April 10, 1839, c. 17, p. 14. Act of January 7, 1819-January 1, 1820 R. C. ch. 75. 14. § 13. Juries de medietate lingua(e) may be directed by the courts respectively. 1788; 1792; 28 Edw. 3, c. 13, § 2. 15. § 14. Jurors knowing any thing relative to the point in issue, shall disclose the same in open court.(f) Ibid. 16. § 18. If any juror, upon any inquest whatsoever, shall take any thing, by himself or another, to give his verdict, and shall be thereof convicted, such juror shall not thereafter be put on any jury, and shall pay ten times as much as he shall have taken; [See tit. CRIMES AND PUNISHMENTS, No. 60, p. 235,] whereof one half shall go to him who will sue for the same, and the other half to the commonwealth, for the use of the literary fund. 1789; 1792. 17. 15. Any juror guilty of a contempt to the court, may be fined by such court in any sum not exceeding thirty dollars. 1788; 1792. 18. § 16. No sheriff shall converse with a juror,(g) but by order of the (g) As to the duty of jurors, after they have retired from the bar, and of the officers in whose keeping they are, see Com. v. M'Caul, Virg. Cas. 301, 306; and U. S. v. Bowler, cir. ct. U. S. Virg. Dist. 1821; The People v. Douglass, 4 Cowen, 26; see Thomas's case, general court, June T. 1825, 2 Virg. Cas. 479; Kennedy's case, June T. 1826; Douglass's case, 4 Cowen, 26. The jury must not hear any evidence in private, either to refresh their memory as to what passed at the trial, or as to any new matter which may arise during their deliberations; if they do, their verdict will be invalid. Metcalfe v. Deane, Cro. Eliz. 189; 2 Hale, 307; 1 Chitty's Cr. L. 633. "If the jury, after their departure from the bar, desire to hear the testimony of a witness again, they may be sent for into court, and the witness may be heard again openly, where the court or parties may ask what questions they think fit." 2 Hale, 307. If a verdict be agreed on, and written in the jury-room, (in a case of felony,) and then in open court read as the verdict, (after the jury had been commanded to look on the prisoner, and asked if they had agreed on a verdict, to which they replied, that they had,) and if the clerk, then in open court, before the jury are discharged, amend the verdict in an immaterial point but before the amended verdict be read, one of the jury, being sick, retires to the jury-room, departing from his fellows and the court, without their knowledge; to which amended verdict the eleven agree; yet 'tis a nullity, for the twelfth did not assent to it. After a verdict, in felony, has been received and read, 'tis the clerk's duty to direct the jury to hearken to their verdict, as the court hath recorded it; then to repeat it to them, and poll them, or say: "And so say you all," or words to that effect; and then, when their assent is given, it is perfected, but till then any juror has a right to retract. In this case, the verdict was set aside as insufficient, and a venire facias de novo awarded, for a new trial, on the same or another indictment. The Com. v. Gibson, gen'l court, June T. 1817, 2 Virg. Cas. 70, Though a verdict is recorded, yet if it appear promptly, that it is not according to the intention of the jury, it may be vacated and set right. Parker's ease, 1 Ry. & Moo. Cro. Cas. Res. 45. Jury came into court, and returned a verdict: "We of the jury find the prisoner guilty of grand larceny," which being openly read by the clerk, the court said to the jury, "gentlemen you are discharged," but it being at the same moment suggested to the court, that no term of imprisonment had been ascertained by the jury, they were called back instantly, and before they had left the courthouse, except one of them, who had gotten from forty to fifty yards from the courthouse, and was accidentally accompanied by a deputy sheriff. The jury being called back, were again sent out, and ascertained the term of imprisonment to be two years. Judgment reversed, verdict set aside, and cause remanded for a new trial. Nath'l Mills's case, gen. ct. Dec. T. 1836, 7 Leigh, 751. See Hall's case, 6 Leigh, 615, on the trial of an indictment for passing a counterfeit bank note, the jury on retiring and being enclosed, find a placard stuck against the wall of their room, charging one of the jurors with being himself a counterfeiter, and insinuating that he had attended the court for the purpose of getting on the jury; the paper is read by the whole jury; verdict, guilty: Held, the fact of this placard so put up and read by the jury, was no ground for setting aside the verdict, unless it appeared, that the mind of the juror impugned, was thereby prevented from a deliberate exercise of judgment, or that the placard had the effect of menace on him, or Act of January 7, 1819-January 1, 1820. R. C. ch. 75. court, after the jury have retired from the bar. See Nov. 1645, act 10, 1 Stat. Larg. 303; Mar. 1661, act 37, 2 Stat. Larg. 73, and Ibid. influenced the deliberations and verdict of the jury. When a bill of indictment is found by the grand jury, and endorsed "a true bill" by the foreman, it should be brought into court, presented by the grand jury, and then the finding shall be recorded. An omission to record the finding, cannot be supplied by a paper purporting to be an indictment with an endorsement "a true bill," signed by the person who was foreman of the grand jury at that term. Nor can it be supplied by the recital in the record, that he stands indicted, nor by his arraignment, nor by his plea of not guilty. It cannot be intended that he was indicted; it must be shewn by the record of the finding, The recording of the finding of the grand jury is as essential, as the recording of the verdict of a jury. The Com. v. Cawood, general court, June T. 1826, 2 Virg. Cas. 527, and Snider's case, 2 Leigh, 744, Nov. T. 1830. Where a prisoner was convicted of murder in the second degree, and the term of his imprisonment in the penitentiary house, fixed at ten years, a new trial moved for, on the ground, that one of the jurors had expressed an unfavourable opinion of his case, before trial, saying that he ought to be hung, was refused, it not appearing that it was a deliberate opinion, but merely a hasty exclamation, which any unprejudiced man might make on hearing of a murder. Smith v. Com. gen. ct. June T. 1815, 2 Virg. Cas. 6. After a verdict against a prisoner charged with an atrocious offence, proof that one of the jurors, (before he was summoned, and who probably did not expect to be on the jury,) said that the prisoner "was doomed to the penitentiary; that he would go if he had even attempted to commit the crime," is not sufficient to shew, that the juror had formed a deliberate opinion touching the prisoner's guilt, or had prejudged the case. Kennedy v. Com. 2 Virg. Cas. 510, June T. 1826; see Brown v. Com. June T. 1826, 2 Virg. Cas. 516. If a decided opinion be formed, and expressed, it is a good cause of challenge to a juror, though the opinion may not have been formed from hearing the evidence given in court. A. Lithgow v. The Com. 2 Virg. Cas. 297. Quære, can a venireman be compelled to answer on his voir dire, whether or not he has formed and expressed an opinion. Ib. A venireman, who had heard a relation of what the principal witness for the prosecution had sworn to, and had said that if these things were true, he believed the prisoner guilty; but who declared on his voir dire, that he felt no prejudice, was open to conviction; and if the facts did not turn out as they had been represented, he was ready to change his opinion, is a good juror. But the forming and expressing a decided or substantial opinion, is a principal cause of challenge. Spooner v. Com. 2 Virg. Cas. 375; Browne's case, gen'l ct. Nov. T. 1830, 2 Leigh, 769; Oseander's case, gen'l ct. July T. 1831, 3 Leigh, 780; Ex parte Vermilyea et al. 6 Cowen, 555; Milligan & Welchman's case, 6 City Hall Record, 69; The People v. Mather, 4 Wend. 229, 238. A declaration made by a juror before he was impannelled, that "if he (the prisoner,) killed the man, he ought to be hanged," is not a sufficient ground on which to grant a new trial; such declaration not being an opinion as to the prisoner's guilt. The Com'th v. Hughes, 5 Rand. 655. A juror, having heard the testimony of a witness in the cause, before the examining court, and formed an opinion on it, was doubtful whether he had expressed that opinion or not, but thought it most probable he had expressed it; nevertheless he declared that he then (at the time of trial before sup. ct. had no prejudice against the prisoner, or his cause, and that he could, as he believed, give the prisoner as fair a trial as if he had not heard any thing on the subject. Adjudged an impartial juror. Pollard v. The Com'th, 5 Rand. 659, and see Jno. M. Jones's ease, gen'l court, Nov. T. 1829, 1 Leigh; Browne's case, gen'l ct. Nov. T. 1830; see The People v. Mather, 4 Wend. 229; and Com. v. Knapp, 9 Pick. 496. Persons called to serve as jurors, in a criminal case, examined on their voir dire, say, they have heard part of the evidence, on a former investigation, and formed some opinion thereon, yet the opinion so formed would no wise incline their minds, as jurors, for or against the prisoner; that they could pass upon his case, on the whole evidence, as impartially as if they had never heard of it: Held, such persons are good and impartial jurors. Hendrick's case, 5 Leigh, 707, 710. On a trial for murder, two jurors are severally examined on voir dire. 1. One states, that he was not present at the examination of the prisoner before the hustings court, and has heard no statement of the evidence from any witness or any person who was present; that he has heard the case spoken of in the town, and rumours in regard to its circumstances, upon which he has expressed no opinion, though he believes those rumours to be true, and if they should turn out upon the trial to be true, he has a decided opinion in regard to the case; but he feels no prejudice, and is satisfied he shall be able to decide the case upon the evidence |