138 S.E. 316 | W. Va. | 1927
Relator was tried in the circuit court of Mineral county on an indictment for desertion and non-support of his wife, under § 16(c)1, Chapter 144, Code, providing in case of conviction for the imposition of a fine not exceeding five hundred dollars, or for imprisonment in the county jail not exceeding one year with hard labor, or both.
After all the evidence was in, instructions given on behalf of both the state and the defendant, and the arguments of counsel made, the jury were sent to their chamber to consider of their verdict. After some time they returned into court, and on being asked by the clerk if they had agreed, announced that they had agreed and tendered to the court the verdict. "We, the jury, find the defendant not guilty." The special judge, who tried the case, refused to receive the verdict, announcing to the jury that he desired to give an additional instruction. After reading the same to them, the jury were returned to their room to further consider of their verdict. The jury failed to come to any agreement and were discharged, and the case continued for a new trial to be had therein. Counsel for defendant, at the time the verdict was received, moved the court to receive and record it. He also *660 asked to be permitted to poll the jury, which was refused. He further objected to the giving of the instruction to the jury and their return to their room for a further consideration of the case. To all these actions of the court the defendant duly objected and excepted. The record clearly shows that the special judge had advised counsel for both the state and the defendant sometime prior to the return of the jury that he was preparing an instruction and intended to recall said jury for the purpose of further instructing them; that he had prepared the same, and was in the act of recalling the jury, when they voluntarily rapped and were brought in before the court and reported.
Defendant now invokes mandamus in this court to compel the trial court to receive and enter the verdict of not guilty, and to enter judgment thereon.
The sole question presented for our determination is: May a trial court refuse to accept a verdict in a criminal case, where the jury, properly sworn and impaneled, have rendered a verdict of not guilty in proper form?
Counsel have not cited any case directly in point, nor has our research revealed any. It is universally the practice and custom of all the states to receive the verdict in such case, where there is no evidence of fraud, and to pronounce judgment thereon wherever it was responsive to the issues and acquit the defendant. 1 Chitty Crim. L. p. 557; Clark's Crim. Proc. p. 485; 12 Cyc. p. 701; State v. Cole,
We therefore award the writ.
Writ awarded.