22 W. Va. 800 | W. Va. | 1883
On the 2d day of March, 1882, James A. Greer was indicted in the circuit court of Jackson county for the murder of Robert G. Maguire on the 19th of January, 1882. On the 6th day of November, 1882, a jury was empaneled to try the case on the issue found; and on the 18th day of the same month the jury rendered the following verdict: “We the jury find the prisoner, James A. Greer, not guilty of murder in the first degree, but we the jury do find the priso
On the trial the prisoner saved twelve several bills of exceptions to rulings of the court; and to the said judgment he obtained a writ of error.
From the evidence, which is certified, it appears, that on the 19th day of January, 1882, John M. Greer was. drunk, and on the street in Iiipley, the county seat of said Jackson county, called the deceased a “damned cowardly scoundrel and a thief;” that deceased was some distance away, but said he would stand his abuse no longer, and went towards him, some of the witnesses say, with an open knife in bis hand; while others say, that he had no knife in his hand, and that when he came near said John M. Greer, the prisoner, who is a brother of said John M. Greer, and who was sober, said to the deceased, “Bobby, stop; we are sober and John is drunk;” that deceased replied: “That is all right, but I do not intend to take his slang;” that deceased attempted to pass around prisoner toward John M. Greer, when prisoner
We will take up the bills of exceptions in their order. The first is to the overruling of prisoner’s motion for a change of venue. The Constitution of our State guarantees every man a right to be tried at his home, iu his county, Avliere the alleged offence Avas committed. Many men had been denied this right, and had been dragged from their homes to be tried by strangers for alleged offences, thus denying to them the influence of a good life upon the men who rvere to try them. This clause in the bill of rights requiring a man to be tried for an offence in the county, AAdiere the offence Aims committed, Avas inserted for the protection of the prisoner. But it may be, that for some cause great prejudice may exist in a man’s county against him, so that he could not there receive, a fair and impartial trial. So the same section of the bill of rights further proAndes: “Unless upon petition of the accused, and for good cause shown, it is removed to some other county.” It cannot be removed on the mere petition of the accused. The State has some rights as well as the accused ; the petition for the change of venue must not only be filed by the accused, but he must show good cause for such change of venue. The State can under no circumstances remove the case on its own motion, and the prisoner cannot have it done unless he shoxos good cause therefor. The burden is on the prisoner to show the good cause; and the affidavits filed or proof taken before the court may be submitted by the State; and if on the whole case made the court is satisfied,
In Wormley’s Case, in which the defendant was convicted of murder in the first degree, there was a motion lor a change of venue, which was overruled. The court of appeals held, that upon an application of a prisoner charged with murder lor a change of venue his affidavit alone of his fears or belief, that he cannot obtain a fair trial in the county, is not sufficient to sustain the motion; but he should be required to show by independent and disinterested testimony such facts, as make it appear probable, at least, that his fears and belief are well founded. But where such facts are shown by the prisoner and are not successfully repelled or explained by the commonwealth, no argument of inconvenience or delay should be permitted to stand in the way of the great end to be attained, a fair and impartial trial. In that case the court of appeals affirmed the judgment of the court below. The court by Daniel, Judge, said:
“With these views of the law we cannot undertake to say after an examination of the testimony on both sides, that the circuit court improperly exercised its discretion in refusing to grant the prisoner’s motion. It is true it is shown that subscription papers were circulated to raise a fee for the employment of counsel to aid in the prosecution, and that they had been signed by some twenty or thirty persons, such a fact of itself is no ground for a change of venue. It is a circumstance tending to show the extent, to which an opinion of the prisoner’s guilt prevailed; but it is not difficult to conceive how men just and upright and free from any ill-will or feeling of vindicativeness towards the accused, in view of the fact that much of the ability, learning and eloquence of the bar was enlisted in his cause, might be willing to contribute*807 for the procuring of additional counsel on the side of the prosecution, in order to bring about, as far as might be, an equal litigation and its probable result, justice as well to the commonwealth as to the accused. It is true also, it is shown that there had been, shortly after the homicide was committed, considerable excitement against the accused in the immediate neighborhood, and on several occasions persons had been heard to express the belief that the people would not.bear with an acquittal; that some who were present at the inquest, and others who were present at the examining coxirt, had expressed the belief, that the people would have put the accused to death, if the suggestion had been made by leading men present; and one of the witnesses, examined on behalf of the application, states that he had heard a person say, that if the prisoner was acquitted by the jury, he would not be surprised if he were hung before he got far from the court-house; that some six or eight other persons were present on the occasion, who seemed to nod assent. But on the other hand there is the total absence of proof of any threats against the prisoner; .and it was shown that the excitement, which at first prevailed, had greatly abated, and had at first been confined mainly, if not entirely, to the neighborhood of the residence of the deceased, and of the place where the homicide was committed, and that the expressions above mentioned had been uttered mainly by persons coming from the same neighborhood. And the opinion is expressed by some of the witnesses, in a manner and under circumstances entitling it to the fullest confidence, that if any effort had been made on the public occasions above mentioned to do violence to the prisoner, or in any manner to impede the course of the law, such effort would have been successfully met and opposed by the people there assembled. And as to the jury the testimony was clear to show, that the court would probably meet with no serious difficulty in obtaining one from the remote parts of the county free from all exceptions.
“In this state of things wo do not think the court erred in refusing to change the venue.”
It is true,-as claimed by counsel for prisoner, that the gocd cause for removal, should exist at the time the application
The conduct of the sheriff shortly after the homicide in writing the letter, which he did, with regard to the prisoner •was calculated to prejudice him and, we must say, was extremely improper.
What were the circumstances existing at the time of the last application for a change of venue? The affidavits and evidence before tfie court show, that the sheriff of the county, who would be required to summon the regular juries for the term, and if they should be exhausted to summons talesmen, was unfriendly, to say the least, to the prisoner; that there was not only a spirit of mob-violence toward the prisoner exhibited a short time before the session of the court, nearly ten months after the homicide was committed, but that it had so far materialized, that it was feared by many, that the prisoner would bo lynched. It is true that the most of the mob were in and around'the scene of the homicide, but that was at the county-seat, the place where the prisoner would have to be tried. While it is true that the witnesses, who testified that they believed the prisoner could have a fair arid impartial trial, were more numerous than those who testified to .the contrary belief, yet their affidavits in many cases contain no reason for such belief. Taking all the evidence and circumstances surrounding the case, it seems to us, the court erred in overruling the motion to change the venue. If the right secured to the citizen, amounts to anything, wo can scarcely conceive of a stronger case for its exercise than the case before us.
In our State by statute, if the jury find the prisoher guilty oí murder in the first degree, they may in their discretion say he shall be punished by confinement in the penitentiary; in which ease he is by the court sentenced to the penitentiary for life. Therefore in our State for a stronger reason should a proposed juror be required to stand aside, who on his voir dire declared he had conscientious scruples against inflicting the death-penalty. In those States, where the only punishment for murder in the first degree is death, a juror, although he had conscientious scruples against inflicting the death-penalty, yet might and probably would be constrained by his oath to find the prisoner guilty of murder in the first degree, although he knew the court on such a verdict could render
In California in 1852, if not now, grand larceny was at the discretion of the jury punishable with death. In Tanner’s Case, 2 Cal. 257, in answer to a question as to whether he had any conscientious scruples against the infliction of capital punishment the proposed juror said, that he would hang a man for murder but would not hang him for stealing. The coui’t rejected him; held to be right. Murray, C. J., said: “It was only from his unwillingness to punish the crime with death, that he could be said to be incompetent. The words of the statute are, 1 If the offence charged be punishable with death.’ Here was an offence so punishable. How could a juror be said to be competent, who would not affix this punishment? And if the verdict and judgment are consequent one upon the other, how could finding the prisoner guilty and affixing a less punishment cure this incompetency? The law ordained, that this offence shall be punished with death; and to allow jurors to sit upon a trial for larceny, who declared they would not impose this penalty, would defeat the intention of its framers and practically work a repeal of its provisions. It would be a mockery of justice to allow or compel a juror to be sworn and placed upon a jury, when he declared that his conscience was so at war with a law,, that he would not under any circumstances consent to the highest punishment provided for a breach of that law; and that bis fellow jurors must shape their verdict to his preconcieved opinions, he having no discretion in the premises.”
This decision we approve. Our statute contains the same provision (Code, ch. 159, § 5.) The court did not err in rejecting the proposed juror.
Bill of exceptions No. 3 shows, that during the trial the counsel of the prisoner asked, that the prisoner might retire, and he did retire in chargeof the jailor, and upon prisoner’s
Proceeding in a trial in a felony-case in the absence of the prisoner is fatal to the verdict. It has been uniformly held in Virginia and in this State, that it is absolutely necessary to a valid conviction, that the prisoner shall be present in court, when anything is done in his case in any way affecting his interest. Sperry’s Case, 9 Leigh 623; Hooker’s Case, 13 Gratt. 763.
In Jackson’s Case, 19 Gratt. 656, it was held, that upon a trial for felony it is the right of the prisoner, a right which he cannot waive, to be present from the arraignment to the verdict. And if the evidence of a witness on the trial, which has been reduced to writing, or any part of it is read to the jury in the absence of the prisoner, it is error, for which the verdict will be set aside. In that case the court said: “ If witnesses are examined he must have an opportunity to hear and know what they say. If notes of the testimony are af-terwards read to the jury, it is no less his privilege and right to hear the reading of it. How much influence the reading of the testimony in this case may have had upon the minds of the jury it is impossible to determine. It is not however a question., whether the effect of the reading of the testimony, in his absence, was unfavorable to him or otherwise, or how far his case was affected by it, if at all.”
The fourth bill of exceptions is to the refusal to give the second instruction, as asked by the prisoner, and modifying it, and giving it as modified. The instruction is as follows: “That the rule in self-defence is, that whatever one person may do for himself, he may do for another; and a brother may defend his brother from the unlawful assault of a person, who has threatened him with death or great bodily harm; and in making such defence he is entitled to the same protection under the law as the person whom he was defend
Bill of exceptions No. 5, is to the refusal of the court to give at the instance of the prisoner instructions Nos. 12 and 14.
The twelfth instruction is as follows: “Thejury are instructed, that the alleged declarations made by the prisoner, after he struck the blow on the deceased, are to be taken in connection with the state of excitement and confusion of mind of the prisoner; if the jury believe lie was excited and in a raving state, as given in evidence, and if such declarations were made under such circumstances, they are to be as admissions only that he struch the blow, and not a confession of any particular grade of crime; and the jury are further instructed, that such declarations are to be considered by them with great caution, in view of the infirmity of memory and influences which often affect witnesses, and if they believe, that any of the witnesses for the State were actuated by partisan sympathy, prejudice against the prisoner, or bias in favor of the prosecution, who testified to such declarations, such declarations ought to-have but little weight.”
"Without attempting to say how much of said instruction propounds the law correctly, it was sufficient to warrant the refusal of the court to give it, that it asks the court to instruct
Instruction No. 14, also refused, is as follows : “No words of reproach or insult used by John M. Greer towards the deceased under the circumstances proven iu the case, considering the distance at that time existing and intervening between the said John M. Greer and the deceased, constituted such a fault or provocation on the part of said John M. Greer, as justified the deceased in advancing upon said John M. Greer for the purpose of assulting him, and the said John M. Greer and the prisoner were not under said circumstances bound to retreat before the advance of said deceased; and if the jury believe from the evidence, that insulting words were spoken of and to the said deceased by said John M. Greer, immediately prior to the homicide, and from all the circumstances in the case the prisoner had reasonable grounds to believe and did believe, that the deceased was about to inflict death or great bodily harm upon the said John M. Green, and that such danger was imminent, then such insulting words were not such fault or provocation, as would preclude the prisoner from defending his brother to the extremity of taking the life of the deceased without retreating, and the jury must acquit.”
This is certainty a very strangely constructed instruction. It assumes, that certain insulting words were used by Greer under a certain assumed state of circumstances, while at an assumed distance, without specifying what, or stating it hypothetically, only referring to the whole evidence for it, and then stating, that if from all the circumstances in the case, the prisoner had reasonable grounds to believe and did believe, that his brother was about to be killed or suffer great bodily harm from deceased, that the prisoner could lawfully strike the blow without retreating. Because of the assumptions of fact, and confused character of the instruction, it was properly refused. What is meant by the words “under the circumstances proven in the case,” &c.? The court might think certain things were proved, and the jury,
The sixth bill of exceptions was to certain remarks made by one of the attorneys. The bill shows, that the “prisoner was not examined as a witness in his own behalf in the case, and that during the argument one of the counsel for the State said to the jury in his argument “defendant has it in his power to make it as clear as the noon-day sun whether Robert Maguire had a knife in his hand at the time he struck the fatal blow, and he has not done — thereupon the prisoner called the attention of the court to said language, and asked the counsel what he meant by such a statement: He said it was by way of argument, and declined to say what he meant, and stated that there was no power in the court, nor anywhere else to make him say what he meant; that he had made the statement and stood by it; and thereupon the defendant excepted to said language and statement and asked the court to certify the same which is accordingly done,.&c.”
The prisoner moved to have the verdict of the jury set aside because of the said statement, which motion the court overruled. Before the sentence Avas completed, the attorney was stopped by counsel for defence. It is certainly not clear Avhat the counsel for the State meant, whether he meant that the prisoner could make the matter clear by his own or other evidence. But if he had commented contrary to the statute, on the fact, that the prisoner had not been as he might have been under the statute examined as a witness in his own behalf, whether such comment would have been a sufficient ground to set aside the verdict, we will not now decide, as the question does not arise. The attorney for the State, whose duty it is to conduct the trial for the State, should be extremely careful not to make continents on the fact that the prisoner was not examined as a witness, as it may be that a verdict against the prisoner would have to be set aside for that reason, although the court should direct the jury to disregard such comments.
The seventh bill of exceptions is to the refusal to give prisoner’s sixth instruction as asked, and modifying it, and giving it so modified. The instruction is: “ If the jury believe from the evidence,that the Avoundinflicted on thebodv
The court modified the said instruction by adding the following words: “ Unless the jury believes from the evidence, that the ¡prisoner, before the mortal blow was struck, took out and opened said pocket-knife intending to use it.”
The instruction even as modified is subject to the same objection as the 14th just considered. The instruction uses the words, “under the circumstances shown in evidence.” What were these circumstances? As said before, the court and counsel might think they were of one character, and the jury might believe that they showed a very different state of facts. So the instruction was well calculated to confuse and mislead'the jury. The modification of the instruction did not, and could not injure the prisoner, for as modified it was more in his favor under the law than against him. The law as laid down in Hill’s Case, 2 Gratt., and in Cam’s Case, 20 W. Ya. 681, is: “A man is presumed to intend that which he does, or 'which is the immediate or necessary consequence of his act, and if the prisoner with a deadly weapon in his possession without any or very slight provocation gives to another a mortal wound, the prisoner is prima fade guilty of willful, deliberate and premeditated killing, and the necessity rests upon him of showing extenuating circumstances, and unless be proves such extenuating circumstances, or the circumstances appear from the case made by the State, he is guilty of murder in the first degree.” “Where a homicide is proved the presumption is that it is murder in the second degree. If the State would elevate to murder in the first degree, she must establish the characteristics of that crime; and if the prisoner would reduce it to manslaughter (or justifiable homicide), the burden of proof rests upon him.”
In Jones’s Case, 20 W. Va. 764, we held as follows: “Upon a trial of shooting with intent to kill, the use of a
The eighth bill of exceptions is to the giving six several instructions to the jury at the instance of the State. The first two instructions given, are in the precise language of the 10th and 11th points of the syllabus in Cain's Case, and are here approved. But it is insisted that they are mere abstract propositions of law. In view of the evidence which is all certified, we cannot say that it was improper to give the instruction in this case.
The third instruction was intended to apply the principles of the 6th point of the syllabus in Cain's Case to this. The instruction is as follows: “If the jury believe from the evidence that there was a quarrel between the deceased and John M. Greer, and both were in fault, and a combat ensued between the deceased and the prisoner, James A. Greer, as the result of such quarrel, and in said combat, the prisoner killed the said deceased, then in order to reduce the offence to killing in self-defence, two things must appear from the evidence and circumstances of the case or both: first, that before the mortal blovr was given, the prisoner declined further combat, and that he and said John M. Greer retreated as far as they could with safety to themselves or to either of them; and secondly, that the prisoner killed the deceased through the necessity of preserving his own life, or the life of the'said John M. Greer, or to protect himself or said John M. Greer from great bodily harm.” If the combat took place, between the prisoner and deceased, as the result of a quarrel between deceased and John M. Greer, why should
The fourth instruction is: “The court instructs the jury, that if they believe from the evidence and circumstances in this case as proved, that the said John M. Greer provoked the deceased to make an assault upon him, and that such assault was intended by the deceased to be a mere common trespass upon the person of said John M. Greer, and it so appeared to the prisoner, then the prisoner was not justified in taking the life of the deceased to protect said John M. Greer from such assault or trespass.” This instruction propounds the law correctly and was properly given. Cain’s Case, supra.
Instructions Nos. 5 and 6 are as follows:
“5. If the jury believe from the evidence, that John M. Greer, the brother of the prisoner, was in fault and by his fault brought about the assault by the deceased upon him, said John M. Greer, then said John M.. Greer was bound to retreat as far as he could, unless prevented by the fierceness of the attack threatened by the deceased, before James A. Greer, the prisoner, was justifiable in taking the life of said Robert G. Maguire in order to save the life of John M. Greer, or to protect him from great bodily harm.”
“ 6. If the jury believe from the evidence, that John M. Greer, the brother of the prisoner, provoked the deceased to make an assault upon him, the said John M. Greer, then said John M. Greer was bound to retreat, as far as possible, consistent with his own safety at the time, before the prisoner, James A. Greer, was justifiable in killing the deceased to save the life of said John M. Greer, or to protect him, said John M. Greer, from great bodily harm.”
The ninth bill of exceptions is to the refusal of the court to permit depositions, taken at the. coroner’s inquest, to be taken to the jury-room. This was not error. Cain’s Case, supra.
The tenth bill of exceptions is to the refusal of the court to give prisoner’s eighth instruction as asked, and to giving it as modified by the court. The instruction as asked is as follows: “If the jury shall believe from the evidence that the facts proven by the prosecution in this case show that the defendant claimed to do the cutting, which resulted in the death of Robert Maguire, the deceased, and testified to by the witnesses for the prosecution, in self-defence, the burden of proof rests on the prosecution to show beyond reasonable doubt that'tho cutting was criminal. And if the prosecution shall fail to convince the jury by evidence beyond reasonable
The eleventh bill of exceptions is to the refusal of the court to set aside the verdict and grant the prisoner a new trial on affidavits filed showing that J. M. Scarberry was an incompetent juror. It appears, that said Scarberry was sworn on his voir dire and declared that he had not formed or expressed any opinion as to the guilt or innocence of the accused, was not therefore challenged and was sworn as a juror. The prisoner in his affidavit says he was .ignorant until after the trial had ended of the expressions of opinion referred to in the affidavits of three persons filed in the case, and had done all in his power to .ascertain, whether any of the jurors sworn, in his case had expressed any opinion as to his guilt. The affidavit of T. 0. Stewart shows, that nearly two months before the trial, many the time and place, he heard the said J. M. Scarberry “express the opinion that the said James A. Greer ought to be hung for the murder of said Eobert Ma-guire.” G. ~W. Pringle, in his affidavit says he was present at the time and place mentioned by T. 0. Stewart and heard said Scarberry express the opinion substantially as stated by said Stewart. J. B. Coats in his affidavit says, that “ during the past summer he heard said Scarberry at the house of Mrs. Brown express the opinion that James A. Greer ought to be severely punished for killing said Eobert Maguire.” Lafayette Einghstep in his affidavit says, that “ about twó months
It has been held by many courts that a juror, who has formed and expressed an opinion of the guilt of the accused before trial, is disqualified, and that fact, if unknown to the prisoner or his counsel until after the verdict is rendered, is good ground for setting aside the verdict and granting a netv trial. Bennett et al. v. State, 24 Wis. 57; French v. Smith, 4 Vt. 363; Childress v. Ford, 10 S. & M. 25;, State v. Tuller, 34 Conn. 281; Eastman v. Wright, 4 Ohio St. 156; Vennum v. Harwood, 1 Gil. 659; Comm. v. Hussey, 13 Mass. 221; Jeffries v. Randall, 14 Mass. 205; Hudgins v. State, 61 Ga. 182; State v. Babcock, 1 Conn. 401; Pierce v. Bush, 3 Bibb 347; Vance v. Haslett, 4 Bibb. 191; Hudspeth v. Herston, 64 Ind. 133; Romaine v. State, 7 Ind. 63; Mayor v. Goetchius, 7 Ga. 139; McKinly v. Smith, Hard. (Ky.) 167; Cain v. Cain, 1 B. Mon. 313; State v. Groome, 2 Ia. 309; State v. Shelledy, 8 Ia. 477 ; Cody v. State, 3 How. (Miss.) 27.
In Mitchum v. State, 11 Ga. 615, it was held, that it was not good ground for a new trial, that a juryman had said before the trial: “If the evidence was as he had heard it, the prisoner was guilty and would be hung.” In the opinion the court said: “This declaration indicates no settled opinion of his own, no .passion or prejudice. It leaves the mind free to determine according to the evidence.” To the same efiecfris Jim. v. State, 15 Ga. 535.
In Hanks v. State, 21 Tex. 526, the defendant pleaded guilty to an indictment for assault, and battery, and a member of the jury, which assessed the fine, upon meeting with the-person, upon whom the assault was committed,for which defendant was indicted, before the trial said to him, “your name is Pelham is it not? I don’t know you but I am well acquainted with your caso, and I will be on the jury and will do all I can for you,” held to be good cause for granting a new trial, where the prejudice of the juror was unknown to the defendant until after the trial.
In People v. Plummer, 9 Cal. 298, it was held, that the declaration of a juror before trial, that “the people ought to
In Sellers v. The People, 3 Scam. 412, it was held, that where a juror a short time previous to the trial of a prisoner for murder and on several occasions said he believed the prisoner “would be hung; that he ought to be hung; that nothing could save him; and that there was no law to clear him,” and subsequently went to the jail, and told the prisoner that “'he ought not to be hung; and if he were on the jury, he should not be hung;” but afterwards, when sworn on the trial touching his competency as a juror, he stated that he had formed and expressed no opinion; and no objection being made to him he was sworn on the jury, and the prisoner was convicted; a new trial was granted on the ground of the incompetency of the juror. The court further held, that it had always been held, that if a juror prejudge a cause, and it is unknown to the failing party in time to challenge, it is a good cause for a new trial. Judge Douglass, who pronounced the opinion of the court, said: “Can it be said that that juror was impartial? that he possessed that moral perception, that sense of justice, that integrity of character, which would qualify him to pass upon the life of a fellow-citizen? It presents the revolting spectacle of deep-seated malice concealed under the sacred garb of friendship, destroying its victim by adding treachery to perjury. It is wholly immaterial for the purposes of this motion, whether the prisoner be guilty or innocent, law, justice, humanity, forbid that he should bo deprived of his life by such means and by a jury thus constituted.”
In Commonwealth v. Flanagan, 7 Watts & S. 415, it was held, that “the expression of an opinion by a juror with re
In Virginia and this State it has been repeatedly held, that a neAV trial will not bo granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered before the juror was so sworn by the exercise of ordinary diligence; unless it appears that the prisoner suffered injustice from the fact that such juror served upon the case. Smith’s Case, 2 Va. cases 6; Poore’s Case, Id. 474; Kennedy’s Case, Id. 510; Brown’s Case, Id. 516; Hughes’s Case, 5 Ran.; Jones’s Case, 1 Leigh 598; Heath’s Case, 1 Rob. R. 735; Hailstock’s Case, 2 Gratt.; Curran’s Case, 7 Gratt. 619; Deburth’s Case, 12 Gratt.; Bris-tow’s Case, 15 Gratt. 634; McDonald’s Case, 9 W. Va. 456. The same doctrine is held in civil eases. Sweeny v. Baker, 13 W. Va.; Flesher v. Hale, 22 W. Va.
What is meant by the following language used by the courts in Virginia and in this State: “Unless it appears that the prisoner suffered injustice from the fact that such juror served upon the case?” It certainly cannot mean, that in order to ascertain whether the prisoner has suffered injustice, the court is to look into the evidence against the prisoner on the issue tried in the case, because it would be impossible to ascertain, in that way, whether he had suffered injustice. The plain meaning of the language is, that the trial-court upon a motion for a new'trial on such ground will look into the affidavits or other evidence offered to sustain the motion, and from them determine, whether the juror, who had before the trial expressed his opinion as to the
The twelfth bill of exceptions is to the refusal of the court to set aside the verdict and grant a new trial, because spirituous liquors were at the request of some of the jury furnished to the jury and drunk by them while deliberating on their verdict.
Deputy Sheriff J. W. Depue, in his affidavit says : “Witness bought some whisky and rhubarb for the jury empaneled in said cause; that witness put the rhubarb in two half pint bottles to take to the jury, and witness endeavored to, and thinks he did, put sufficient rhubarb in said whisky, that two spoonfuls of the mixture would produce an operation on those drinking the mixture, and that witness took two other half pint bottles of whisky to the jury, into one of which no rhubarb was put; and that the whisky was taken to the jury after adjournment hours; that one of said bottles of whisky was given to one of the jury on the morning of the day, on which the jury rendered its verdict, about two and a half or three hours before court sat; and that witness observed the jury very closely, and not any of the jury became intoxicated from the use of said whisky. * * * The verdict of the jury was rendered 12:30 o’clock that day.”
Should the verdict have been set aside and a new trial granted? A number of courts have held in the broadest terms, that the use of intoxicating liquor by a jury while deliberating on the case will vitiate the verdict. People v. Douglass, 4 Cow. 26; Bryant v. Fowler, 7 Cow. 562; Kellogg v. Wilder, 15 Johns. 455; Rose v. Smith, 4 Cow. 17; State v. Baldy, 17 Ia. 39; Gregg v. McDavid, 4 Harr. 367; Ryan v. Harrow,
In State v. Bullard, 16 N. H., the court by Woods J. said: “We are of opinion that the use of stimulating liquor by a jury deliberating upon a verdict in a criminal case without first showing a case requiring such use, and procuring leave of the court for that purpose, is a sufficient cause for setting aside a verdict found against the prisoner under such circumstances whether the use was an intemperate one or otherwise.”
In Leighton v. Sargent, 31 N. H, Woods C. J. wdio pronounced the opinion of the court said: “For the cause that brandy was furnished to the jury and drank by several of them while deliberating on the case after retiring to form their verdict, we think the verdict should be set aside. The quantity drank was probably small, but we cannot consent that, that fact should make a difference. We fully concur in the remark made by the learned judge in People v. Douglass, 4 Cow. 36. ‘It will not do to weigh and examine the quantity which may have been taken by the jury, nor the effect produced.' The cause alleged of slight illness will not justify the use made of the liquor. The case was not so pressing as not to allow of opportunity for leave to be given for its use if found to be one properly requiring it.”
Many decisions hold, that the mere fact, that intoxicating liquors were used by the jury while deliberating on the case, is not sufficient to set aside the verdict, if it appears that no injury resulted therefrom. Wilson v. Abrahams, 1 Hill 207; Preston v. Humphries, 6 Greenl. 379; United States v. Gilbert, 2 Sumn. 21; Pelham v. Page, 1 Eng. 535; Davis v. The People, 19 Ill. 74; Westmorland v. State, 45 Ga. 225; State v. Upton, 20 Mo. 397; Pope and Jacobs v. State, 36 Miss. 121; Russell v. State, 53 Miss. 367; Green v. State, 59 Miss. 501; Roman v. State, 41 Wis. 312; Richardson v. Jones & Denton, 1 Nev. 405 ; Thompson’s Case, 8 Gratt.
In the case in 36 Miss. supra, Smith, C. J., speaking for the court, said : “Drinking in any shape is not to be tolerated in a jury during the progress of a trial. The conduct and acts of the jury as well as those of the bailiff were there
In Russell v. State, 68 Miss. supra, it was held, that while the introduction of intoxicating liquors as a beverage into the jury-room is highly censurable and should be the subject of exemplary punishment, it will not vitiate the verdict, if it can be affirmatively shown not to have injuriously affected the deliberations of the jury. In this case a pint and a half of whisky was taken into the jury-room four days before the verdict was rendered, and another pint and a half three days before. The verdict was sustained. In that case the judge who pronounced the opinion said: “If the judge of the court below failed to punish the bailiff who furnished these jurors with liquor he failed to discharge his duty. After the repeated decisions on this subject, it is certainly time, that both jurors and officers were informed as to the law in this respect; and if they will learn it in no other manner, it is the duty of the circuit judges to teach them by fines and imprisonments.”
This Court held in Cartrights Case, 20 W. Va. 32, and same in Robinson’s Case, Id. 713, that where there has been an improper separation or misbehavior of the jury during the trial, if the verdict is agaiust the prisoner, he is entitled to the benefit of the presumption, that the irregularity has been prejudicial to him, and the burden of proof is on the prosecution to show beyond a reasonable doubt, that the prisoner has suffered no injury by reason of the separation or misbehavior. If the prosecution fails to do this, the verdict
Has it been clearly shown by the affidavits that no injury resulted to the prisoner? I think not. The officers who furnished the whisky in violation of their solemn duty, are the only persons, who say the jury nor any of them were affected by the quart of whisky and three quarts of beer. Their statement as to the quantity used, or when used is entitled to very little weight. It is admitted by one of the officers, that he gave one of the jurors a half pint of whisky a few hours before the verdict was rendered. Who drank it does not appear. It was certainly sufficient to make the man drunk, who received it. Again, it seems to' us, that the mixing of the rhubarb in the greater quantity of liquor was a sham, upon which to frame an excuse, if the fact, that the jury drunk liquor during their deliberations, was found out. It shows, that they were conscious of doing wrong. If the guilty officers and jurors were not punished for this glaring offence, the judge of the circuit court did not do his duty. Under the circumstances shown in this case we think, that the verdict should have been set aside because of the misconduct of the jury in drinking liquor during their deliberations.
The last error assigned is, that the jury ascertained the term of imprisonment by their verdict. This was irregular, and the court should have informed them, that it was no part of their duty to fix the term of imprisonment and should have sent them back to their room to correct it. But it was surplusage and did not vitiate the verdict. The court fixed
For the foregoing reasons the judgment of the circuit court is reversed, the verdict set aside, and the case remanded with instructions to the court below to enter an order removing, if again asked, said case to some other county for a new tidal tfiere to be had.
Reversed. Remanded.