40 W. Va. 718 | W. Va. | 1895
Peter Cobbs was sentenced to be hanged, for the murder of David Adams, by the Criminal Court of Mercer county, and then applied to the Circuit Court of that county for writ of error, which was refused, and then he obtained a writ of error from this Court.
It is said that the Criminal Court erred in failing, on its own motion, without request, to instruct the jury that if they should find the prisoner guilty of murder in the first degree,, they could either find that he he sent to the penitentiary for life or punished with death.
Under the criminal practice in Virginia, and also in West Virginia, until the Code of 1868, when a person was charged with felony, the procedure of the trial began with a formal arraignment, proclamation by the sheriff and charge by the clerk. The charge of the clerk instructed the jury what they should do under the law in case they found the defendant guilty, as, for instance, what punishment they should impose, where the manner and degree of punishment were committed to them by law. This charge was under the eye of the court, was considered as an instruction by the court, and if erroneous, was ground for reversal. See its form, 3-
I think that the duty of informing a jury as to its power to elect between punishment by death or confinement in the penitentiary in murder cases would have a been part of the clerk’s charge under the former practice, and that its omission would be error, if that practice still prevailed; but such practice having been dispensed with, this matter is, like any other matter of law touching the trial, the subject of instruction) and governed by the law relating to instructions. I do not think that this po wer of election between the two punishments has anything about it so peculiar as to distinguish it from other rights of the defendant under the law, so as to make it incumbent on the court to give an instruction of its own motion, and render its omission error. A court is not bound, even on motion, to instruct the jury generally on the law of the case. Womack v. Circle, 29 Gratt. 192, par. 8. Then why so as to this matter? 2 Thomp. Trials, § 2188, does say that in criminal cases it is the duty of the judge to advise the jury as to the punishment which the law imposes on the crime, so they may properly assess the penalty according to the' magnitude and character of the crime, and cautiously adds, “And it is supposed that a failure to do this, even where not requested, would, in most jurisdictions, be ground of reversing the judgment.” Doubtless the advice here given by Judge Thompson to courts to see that juries do not act in the vital matter of punishment in obscurity and confusion of mind is judicious in all jurisdictions, and doubtless its observance is essential and indispensable in all jurisdictions, as in England and many of the American states, where the judge “sums up” the case, as it is said, that is, delivers a charge, in which he covers the whole ground of the case, giving his opinion on law and fact; and this charge is necessary, and must be full in its exposition of the law of the case. 1 Bish. Cr. Pr. §§ 976, 979, 980; Whart. Cr. Pl. §§ 709, 711. This charge is a material part of the trial. But in the Virginias this “summing up” or charge is unknown. Our practice is widely different. Under our practice the
But this does not end or settle the prisoner’s right touching this matter; for, when the jury came in with a simple verdict of guilty of murder in the first degree,without any" finding that he be punished by confinement in the penitentiary, he asked the court to tell the jury that it had a right to^ make such addition to its verdict, which the court refused to do. This solicited instruction certainly propounded the law
Three jurors, by affidavit, say that they thought that if the jury found a verdict of murder in the first degree it was with the court to determine whether the accused should suffer death or be confined for life in the penitentiary, and not their duty to determine that matter, and that if they had known it was the province of the jury to determine between those two punishments they would have found in favor of punishment by confinement in the penitentiary, and that thus they acted in mistake of law, while three other jurors, by affidavit, say that the right of the jury to elect between the two modes of punishment was fully discussed, asserted, and explained in the jury room, before all the jurors, and that it was explained there that under the verdict found the prisoner would suffer death. Here is a strange contradiction. It is almost inconceivable that it should exist. It is a signal illustration of the wisdom of the rule of law that the evidence of jurors shall not be received to impeach their verdict. If the first affidavit
Another circumstance may be summoned to sustain the action of the court, namely: Counsel agreed not to argue the case, but to state what they conceived to be the law of the case, and, nothing having been said by counsel on either side as to the right of the jury to find for punishment by confinement in the penitentiary, the court called counsel for the prisoner to his desk before the jury retired, and called his attention to that fact, and the counsel remarked to the court that he would rather take chances than call the jury’s attention to that law at that time. This was a private con
The point that there was a separation of the jury arising from the manner in which they were kept over night is made by .counsel, but not urged. There was no legal separation. There is nothing of importance or novelty in this case upon this question, which has been so much discussed in former cases, calling for further discussion. Tompson’s Case 8 Gratt. 637; State v. Harrison, 36 W. Va. 729 (15 S. E. Rep. 982); State v. Belknapp, 39 W. Va. 427 (19 S. E. Rep. 507).
Reversed and remanded for new trial.