42 W. Va. 205 | W. Va. | 1896
R. L. Lowry was on the 30th day of Alarch, 1895, in the Criminal Court of Ohio county, convicted of forgery, and sentenced to the penitentiary for five years. The circuit court of said county having refused him any relief, he applied for and obtained a writ of error to this Court.
Numerous errors are assigned, but they are too cumbersome to be given at length. The first five assignments relate to the refusal of the court to give five several instructions. The sixth is to the arbitrary closing of the case by the court before the prisoner had concluded his evidence. The seventh is to the refusal of the court to allow certain depositions to be taken to the jury room by the jury. The ninth is to the refusal of the court to set aside the verdict and
The prisoner was indicted for forging, and uttering, knowing the same to be forged, the following paper, to wit: “No. 67. Wheeling, W. Va., July 12, 1893. The National Bank of West Virginia, at Wheeling, pay to the order of B. L. Lowry &Bro. forty two 65-100 dollars ($42 65-100). Goodhue & Thomas.” And indorsed on the back thereof: “R. L. Lowry Bro., for R. L. Lowry. Received on same six dollars.” The state proceeded to prove the contents of this paper without producing it or accounting for its non-production. To this the prisoner objected. The state then introduced one M. D. Post, whose testimony is as follows, to wit: “Question. Mr. Post, what is that you have in your hand? Answer. This is an indictment. Question. Well; an indictment in this case? Answer. Tes, sir; against R. L. Lowry. Question. You see in the first count, and, as well, in the -second, the description of the paper alleged to have been forged ? Answer. Yes, sir. Question. Have you seen the paper that is described there? Answer. I have. Question. Have you compared it carefully with the description in the indictments — as to face as well as to in-dorsements? Answer. Yes, sir. Question. Say whether or not both is a true and accurate description. Answer. They are both accurate descriptions, and I compared them myself carefully at the time this indictment was made. I wrote the indictment myself, and compared the original paper with the description set up in this indictment in the first count and in the second count, and they are both ac
It is true, after the state had introduced all its evidence touching the character, contents, and purport of the paper in question, the witness Post is recalled, and testifies that he received the check from Squire Gillespy, drew the indictment from the warrant and check, and then either put the check in the indictment and filed them away, or gave it to the prosecuting attorney. The prosecuting attorney then makes the following statement, which appears to have been addressed to the court, and is copied into the record: “By Mr. Howard: I want to testify: That the check of which Mr. Post has spoken in his testimony I received with the indictment, and exhibited both to the grand jury, in the grand jury room, on the day they met, and took the check from the grand jury room to put in a pigeon hole in
The following instructions asked by the prisoner were refused by the court: “Instruction No. 2. The jury are instructed further that the presumption of innocence is not a mere form, to be disregarded by the jury at pleasure, but it is an esáential and substantial part of the law of the land, and binding on the jury in this case; and it is the duty of the jury to give the defendant in this ease the full benefit of-the presumption, and to acquit the defendant-unless they feel compelled to find him guilty, as charged, by the law of the land and the evidence in this case, convincing them of his guilt, as charged, beyond all reasonable doubt.” “Instructions No. 16. The court further instructs the jury that if they believe from the evidence that at the time the paper writing mentioned in the indictment was forged or uttered, or attempted to be employed as true, with the knowledge that said paper writing was false and forged, if at that time the defendant, R. L. Lowry, was in Catlettsburg, Ky., as shown by witnesses for the defendant, and was not present in Wheeling, Ohio county, W. Va., at the time the alleged offense was committed, then the jury are instructed that they must acquit the defendant, unless it has been proved to the satisfaction of the jury, and beyond all reasonable doubt, that he in some manner aided, assisted, advised, or encouraged the commission of the said offense before it was committed. Instruction No. 17. The court further instructs the jury that if they entertain any reasonable doubt as to whether or not the defendant was in Catlettsburg, Ky., or Wheeling, in Ohio county, W. Va.,
There appears to be no good reason why these instructions ■were not given to the jury. It is said that instructions to the same import had already been given; yet, while this is true, these are worded in a different manner from those given, with the evident intention of bringiug to the attention of the jury different phases of the defense, and, while they might have been the same in effect, yet in cases of doubt the prisoner is entitled to the benefit of it. It is not the disposition of this Court to encourage counsel in an undue repetition of the same questions of law, in repeated instructions, especially in civil cases; yet, where the evident purpose is to protect the liberty or life of a prisoner, the court should be careful not to deprive him of his legal rights by a too strict construction of rules of practice. The defense of the prisoner was not guilty, which he attempted to substantiate by proving an alibi. These instructions principally related to such alibi — especially the sixteenth and seventeenth. The burden of proving, such alibi is upon the prisoner, but if the evidence tends to prove the same, and to show that he could not have been guilty of the offense charged, because he was absent from
Code, e. 131, s. 12, has no application to depositions taken in criminal cases, but they are governed by chapter 159, s. 1; and therefore the court committed no error in not allowing the jury to take the depositions to the jury room, but the court should have seen that the jury were fully informed as to their contents, so as to enable them to arrive at a just conclusion.
Before closing a case, the court should afford the prisoner a fair opportunity to introduce all his testimony. It is true, this trial appears to have been long drawn out, but the fault appears to be more with the prosecution than with the defense, owing to the haphazard way adopted in the introduc
The judgment in this case is reversed, the verdict of the jury set aside, and a new trial awarded the prisoner, and the case is remanded to the criminal court of Ohio county, to be further proceeded in, in accordance with this opinion and the law in such cases made and provided.