Kennedy v. Commonwealth

Gregory, J.,

dissenting.

The accused was driving on the Ocean View Boulevard at 70 miles an hour when two police officers arrested him. He had a pint bottle half filled with whiskey and according to the testimony of the officers, he was under the influence of intoxicants. When he was taken to the police station the police sergeant there observed him and testified that at that time he was under the influence of intoxicants. The accused testified in his own behalf and admitted that he had taken about five drinks during the evening from the pint bottle which was in the car, but denied that he was under the influence of intoxicants. His amazing statement is that he and his wife and three friends had been drinking from that bottle and had consumed only about one-half pint of whiskey.

The assignment of error based on the insufficiency of the evidence was abandoned. This concession was entirely proper because the evidence abundantly supported the verdict. In *729fact it would be difficult to understand how any jury could have acquitted the accused under the evidence.

The main assignment of error is that the jury was improperly selected. The record clearly shows that the court provided a panel of 11 men free from exception and in all respects qualified to serve as jurors in this case and in selecting five jurors the court directed counsel to strike three each from the list. This was objected to by counsel for the accused for the sole reason that he wanted only one challenge and not three. He did not claim that his rights were prejudiced. He contended that he was entitled to a panel of seven instead of a panel of 11.

There seems to be two methods of selecting a jury to try a misdemeanor case; one by the provisions of Code, section 4895, which expressly states that “the jury so summoned may be used for the trial of all cases which may be tried at that term, including civil cases as well as felonies and misdemeanors”; and the other by the provisions of Code, section 5992, which declares that jurors chosen under that section “shall constitute a jury for the trial of civil and misdemeanor cases * * By section 5996, it is provided that jurors shall be selected by lot. For the trial of misdemeanor cases either method may be used. Gray v. Commonwealth, 132 Va. 674, 111 S. E. 276.

No motion was made by the accused to select the jury by lot under section 5996. The qualification as jurors of the 11 men placed in the jury box was unquestioned. Every single one of them was competent to serve. When five of them were finally chosen in the manner indicated, no constitutional right of the accused was thereby invaded. He had an impartial jury and a fair trial and if he had desired he could have invoked section 5996 and secured a jury by lot. He waived his right to that manner of selection by not asking that the jury be selected in that way.

Even if error was committed it was harmless. An outstanding fact is that the accused has shown no prejudice. In the language of section 4895, it does not appear “that such irregularity, or error, or failure, was intentional or such as to probably cause injustice * * * to the accused; # * Under sec*730tion 6331, which has been expressly applied in criminal cases (Walker v. Commonwealth, 144 Va. 648, 131 S. E. 230), where an accused has had a fair trial on the merits and substantial justice has been reached, the judgment will not be reversed. See also, Code, section 6002, and Burks’ Pleading and Practice (3d Ed.) page 426. No error in the trial short of one actually invading the constitutional rights of an accused should be sufficient under our statutes to cause a reversal of a judgment of conviction, if it appears from the evidence that he has had a fair trial on the merits, and substantial justice has been done.

The evidence, as indicated, shows clearly that the accused was guilty and that no other proper verdict than one of guilt could have been rendered. The accused has not shown that he was injured in any way by the manner of selecting the jury adopted by the court. See Walker v. Commonwealth, supra; Thacker v. Commonwealth, 157 Va. 836, 160 S. E. 65, and Ballard v. Commonwealth, 156 Va. 980, 159 S. E. 222.

For the foregoing reasons I am unable to agree with the majority.

Hudgins, J., concurs in dissent.