No. 1; No. 2 | Va. | Jan 18, 1923
after making the foregoing statement, delivered the following opinion of the court:
The questions involved will be disposed of in their order as stated below.
1. Did the action of the trial court in permitting the remark of the attorney for the Commonwealth, to the effect that the offense of the accused was the most flagrant he had seen during the past year, and the most flagrant he had tried for months and months, to go to the jury without any instruction of the court cautioning the jury that they were not to allow such remark to influence them in fixing the penalty which might be imposed by their verdict, in the event they found the accused guilty, constitute reversible error?
The question must be answered in the negative.
The accused relies upon Jessie’s Case, 112 Va. 893, 71 S.E. 612" court="Va." date_filed="1911-06-13" href="https://app.midpage.ai/document/jessie-v-commonwealth-6812502?utm_source=webapp" opinion_id="6812502">71 S. E. 612; Mullin’s Case, 113 Va. 787" court="Va." date_filed="1912-06-18" href="https://app.midpage.ai/document/mullins-v-commonwealth-6812636?utm_source=webapp" opinion_id="6812636">113 Va. 787, 75 S. E. 193, and McCoy’s Case, 125 Va. 771" court="Va." date_filed="1919-06-18" href="https://app.midpage.ai/document/mccoy-v-commonwealth-6814158?utm_source=webapp" opinion_id="6814158">125 Va. 771, 99 S. E. 644, to sustain the position that it was reversible error for the court to permit the remark in question to go to the jury without any caution on the subject. These cases all involve the utilization in argument of matters of fact of which there was no evidence before' the jury, but which were very material upon the question of the guilt or innocence of the accused. The instant case involves a mere expression of the opinion of the prosecuting attorney, not upon the guilt or innocence of the accused based upon facts not in evidence, but upon the flagrancy of the offense. And the opinion, when the whole of the remarks of the attorney are read, is plainly a mere state
He gives reasons which are fully supported by the evidence, and which fully warranted the penalty imposed by the verdicts, which were independent of the flagrancy of the cases, as he considered them, when compared with others he had seen and tried within the period mentioned. And, while we must condemn the remark in question as improper, because immaterial and concerning matters which, not only were not in evidence, but which could not have been properly admitted in evidence, we think, upon consideration of the whole statement of the attorney, that such remark was understood by the jury as stating merely the personal reason of the attorney for asking heavy penalties, and that the jury were asked by him merely to fix the penalty as warranted by the evidence and as authorized by the statute as punishment of the accused for the offenses they had committed and to deter them from committing further like offenses. It would have been better practice if the learned trial judge had stopped the remark before it was completed, or had cautioned the jury on the subject, but we are satisfied that he did not do so for the reason that he felt that under the circumstances of these cases, it would be understood by the jury as just stated and would not mislead them.
On the subject of whether the permission of remarks of counsel, which are objectionable in argument before a jury, constitutes reversible error, this is said in 3 Wig-more on Ev., sec. 1807, p. 2338: “One suggestion * * may be useful; namely, that a test may often be made by asking if it is immaterial for the case in hand whether the specific fact asserted is true or not; if its truth is thus
“1881, Elliott, J., in Combs v. State, 75 Ind. 215" court="Ind." date_filed="1881-05-15" href="https://app.midpage.ai/document/combs-v-state-7044222?utm_source=webapp" opinion_id="7044222">75 Ind. 215, 219; ‘One of the attorneys for the prosecution, in addressing the jury, said: “Three or four men have been recently executed at Indianapolis, most of whom set up the plea cf insanity;” and of this statement appellant earnestly and bitterly complains. We do not regard such a statement of sufficient materiality to warrant a reversal. Courts ought not to reverse cases because counsel, in the heat of argument, sometimes * * * * wander a little way outside the record. If a matter of great materiality is brought into the record as a matter of extended comment, then there would be reason for setting aside the verdict. If every immaterial assertion or statement which creeps into an argument were to be held ground for reversal, courts would be so much occupied in criticising the addresses of advocates as to have little time for anything else. Common fairness requires that courts should ascribe to jurors ordinary intelligence, and not to disregard their verdicts because counsel during the argument may have made some general statement not supported by the evidence. * * * It is the duty of the judge who presides at the trial to restrict the argument upon the facts to such as are established by or inferable from the evidence; but, in doing so, it is not his duty to abridge the freedom of the*744 debate by preventing counsel from enforcing his argument by illustration or example. It is not always easy to draw the line between what is proper and what is improper. Matters of common, general, public information may sometimes be properly referred to, and matters-of known and settled history may often be commented upon, with entire propriety; but matters * * * not of common and public notoriety are not properly the-subject of comment. To rigidly require counsel to confine themselves directly to the evidence would be a delicate task, both for the trial and the appellate court; and it is far better to commit something to the discretion of the trial court than to attempt to lay down or enforce a general rule defining the precise limits of argument. If counsel make material statements outside of the evidence which are likely to do the accused injury, it. should be deemed an abuse- of discretion and a ease for reversal; but where the statement is a general one, and of a character not likely to prejudice the cause of the accused in the minds of honest men of fair intelligence, the failure of the court to check counsel should not bo deemed such an abuse of discretion as to require a reversal.’ ” .
To the same effect, see Jackson v. Commonwealth, 100 Ky. 239" court="Ky. Ct. App." date_filed="1896-12-08" href="https://app.midpage.ai/document/jackson-v-commonwealth-7133472?utm_source=webapp" opinion_id="7133472">100 Ky. 239, at p. 267, 38 S.W. 422" court="Ky. Ct. App." date_filed="1896-12-08" href="https://app.midpage.ai/document/jackson-v-commonwealth-7133472?utm_source=webapp" opinion_id="7133472">38 S. W. 422, 1091, 66 Am. St. Rep. 336; People v. Barthelman, 120 Cal. 7" court="Cal." date_filed="1898-02-02" href="https://app.midpage.ai/document/people-v-barthleman-5449025?utm_source=webapp" opinion_id="5449025">120 Cal. 7, at pp. 15-16, 52 P. 112" court="Cal." date_filed="1898-02-02" href="https://app.midpage.ai/document/people-v-barthleman-5449025?utm_source=webapp" opinion_id="5449025">52 Pac. 112; State v. Shores, 31 W. Va. 491" court="W. Va." date_filed="1888-09-19" href="https://app.midpage.ai/document/state-v-shores-6593829?utm_source=webapp" opinion_id="6593829">31 W. Va. 491, 7 S. E. 414, 13 Am. St. Rep. 875; State v. Shawen, 40 W. Va. 1" court="W. Va." date_filed="1894-11-24" href="https://app.midpage.ai/document/state-v-shawn-6595078?utm_source=webapp" opinion_id="6595078">40 W. Va. 1, 20 S. E., 875; State v. Clifford, 58 W. Va. 681" court="W. Va." date_filed="1906-02-06" href="https://app.midpage.ai/document/state-v-clifford-8175792?utm_source=webapp" opinion_id="8175792">58 W. Va. 681, 687, 52 S. E. 864.
2. Did the court err in refusing the instruction asked for by the accused, mentioned in the statement, preceding this opinion?
This question must be answered in the negative.
This instruction is precisely the same as instruction. No. 12 refused in Sims’ Case, in which the opinion of the.
“The instruction might probably, with propriety, have been given, but it embodies principles so well understood by every one and so fully covered by the oath of each juror that its refusal cannot be deemed error. No juror should ever yield to a conscientious opinion, deliberately formed after a full and fair investigation of the case, as to the guilt or innocence of the accused, but jurors should not be invited to disagree if they can. When such an instruction is given, the jury should be further instructed that the jury room is no place for pride of opinion or obstinacy, but that it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other, and with open minds, to give careful consideration to the views of their fellows, and, if it can be done without a sacrifice of conscientious convictions, agree upon a verdict. ‘By such means and such only, in a body where unanimity is required, can safe and just results be attained, and without them trial by jury, instead of being an essential aid in the administration of justice, would be a most effective, obstacle to it.’ Commonwealth v. Tuey, 8 Cush. (Mass.) 1; Odette v. State, 90 Wis. 258" court="Wis." date_filed="1895-04-23" href="https://app.midpage.ai/document/odette-v-state-8184850?utm_source=webapp" opinion_id="8184850">90 Wis. 258, 62 N. W. 1054; Jackson v. State, 91 Wis. 253, 64 N. W. 838.”
The case will be affirmed.
Affirmed.