dissenting.
I am constrained to dissent from the opinion of the court in this case.
I concede in the outset that the venire facias which required the sheriff to summon twenty-four men when the statute directed sixteen to be summoned was an irregularity. I concede that, objection having been made to the writ by a motion to quash -before the jury were sworn, these facts, standing alone, might warrant the court in quashing the writ. The deviation of the writ from the statute was not in a particular which could have affected the rights of the accused. It was unlike the case of Wash v. Commonwealth, 16 Gratt. 530, where the clerk interpolated into the writ a direction that the jurors to be summoned should “own property, real or personal, of the value of one hundred dollars !at least,” words not occurring in the statute, and the effect of which was to change the qiialifications of the jurors. In this case, the law provided that the venire facias should issue to summon sixteen persons for the trial of the prisoners. The writ which was issued and actually served provided that twenty-four persons should be summoned. Prom *857this list of twenty-four only fifteen names were obtained of jurors free from abjection. A second venire for that number was issued from which, no jurors were obtained, and it was only after a third venire was issued that sixteen persons.free from just exception were obtained, from whom an impartial jury for the trial of the prisoners was selected. If the first writ had been quashed, it would have been entirely competent for the sheriff to have summoned those named in it and in attendance upon the court in obedience to the second writ, and I cannot conceive that it was within the range of possibility that the prisoner should have been wronged or injured in the slightest degree by the course which was pursued. The whole object of the law is to obtain a jury free from all legal objection, to stand impartial between the Commonwealth and the prisoner, ready and able to give him a-fair trial without favor or prejudice, and there is no pretence or suggestion that this end was not attained in this case.
It is true that in the case of Wash v. Commonwealth the court held a general motion to quash the venire facias sufficient to bring before the trial court every objection that existed to the writ. It is true that the court which decided Wash’s Case is worthy of all respect, but I presume to think that its judgment in the case is not in accordance with the trend of judicial opinion at this day, which demands that objections shall be specifically stated, “to enable the trial judge to understand the precise question upon which he has to rule, and to relieve him from the burden of searching for objections which counsel is unable to discover, or which he sees fit to conceal, and to afford the opposite party an opportunity to obviate it before the close of the trial, if well taken.” 1 Thompson on Trials, p. 561; Greenleaf on Ev. (16 ed.), note to pages 6 and 7.
It is time that these quotations are dealing directly with the subject of the admissibility of evidence, but that would rather serve to strengthen than to diminish the force of what has been *858quoted. Juñes are not always able to discriminate between wbat is relevant and wbat is irrelevant in the testimony submitted to them, and yet if testimony be admissible for any purpose whatever in a case, a general objection to it does not suffice, ‘but the trial court is entitled to have the objections speciffcally stated, so thlat its attention may be directed to the very point at issue. Cluverius v. Commonwealth, 81 Va. 787. If this be true with respect to the admissibility of testimony which may or may not be prejudicial, by how much more is it true with respect to mere irregularities in matter of form, the decision of which one way or the other cannot prejudice or in any degree affect the fate of the prisoner. I repeat that I have great respect for the court, and the learned judge who delivered the opinion in Wash v. Commonwealth. I should feel obliged to follow it in an identical case, but it seems to me to he far better practice, one promotive of the administration of justice, one which can work no injury- to any party, to require objections made during the progress of the trial to be so presented to the trial judge that he may give an intelligent judgment upon the precise matter in issue, and not be left to grope in the dark.
Prisoners are entitled to counsel as a matter of right, and counsel represent them in the presence of the court. There are rights which the prisoner cannot waive, and which, of course, counsel cannot waive for him, but there are mere irregularities as to which counsel may bind him either by express waiver or by conduct, as when he remains silent when it was his duty to speak. ' ” 1
There is a broad distinction between Wash’s Case ‘and the one under investigation. In. that case there was a motion to quash and nothing more, but here the court called upon counsel to point out any errors that might exist in the writ, to which counsel replied that they had none to point out, -and thereupon the motion to quash was overruled. I think it Was the duty of counsel to answer the question of the court fully and frankly. *859Attorneys are officers of the court. They bear a part, a highly honorable and necessary part, in the administration of justice, and that they should perform their functions in the most efficient manner, mutual gonfidence and esteem should characterize the relations between the court and the bar; and especially should those relations be entirely frank and open. It is, in my judgment, essential to the due and orderly conduct of business in court that this should be so. I think this circumstance takes this case.out of the influence of Wash v. Commonwealth. I think that, under the circumstances narrated, there was no sufficient objection made to the venire-, or, if that be not so, that when counsel declined to specify the objection, it was a waiver of objection, and that the plaintiffs in error are in no worse position than if, in ignorance of its existence, there had been a failure to enter any objection before the jury were sworn. I think the defect in the venire is a merely irregularity—Vawter’s Case, 87 Va. 245—a naked technicality which did no harm, and could by possibility do no harm, to the prisoners. I think every man is entitled to have all the safeguards which the law provides thrown around him when he is called upon to answer at the bar of justice. He should have an impartial jury, and, if improper evidence is introduced, and improper instructions are given, he should have a new trial, if convicted; but when the law of the land has been complied with in all matters of substance by the trial courts, their judgments should not be reversed for a mere dry, barren, technical error. Such judgments (I speak with all respect for the court, and the learned judge who prepared its opinion) impair and undermine confidence in the law as a rational rule of conduct, and tend to encourage resort to tumultuary and violent methods for the punishment of crime which all deplore as a blot upon our civilization.
Reversed.