State v. Miller

Citations

• 6 W. Va. 600
• 1873 W. Va. LEXIS 65

Syllabus

<p>Syllabus.</p> <p>After January 1873, when the Boards of Supervisors and Recorders had ceased to exist under the Constitution, though jurors could not ' he obtained under sections 3, 4,5, 6, 7, 8, 9, 10, 12, 16 of Chapter 116 of the Code, to try cases pf felony; in such cases they could he summoned and selected under section 3 of Chapter 159.</p> <p>Section 21 of Chapter 116 of the Code relative to special juries, amended in 1870, does not apply in cases of felony.</p> <p>When on the 1st of March 1873, a prisoner charged with murder was sit to the bar and announced that he was ready for trial, whereupon the court expressed the opinion that the prisoner might he legally tried by a special jury, and informed him that unless he askod to be tried by suoli a jury the case would be continued; and thereupon the prisoner, stating that he did not wish to waive his right, but in order to get a trial, asked for a special jury. It is considered that what the court said and did was erroneous, and influenced the prisoner to ask for a special jury — and so to waive his right to strike eight jurors from the panel and acquiesce in the wrong of the prosecuting attorney’s striking off two without cause; and that the accused is not precluded to question the legality of the proceeding, as if he had not asked the special jury but at the proper time had objected, or had moved to strike eight from the panel, or had objected to the prosecutor’s striking off any.</p>