State v. Allen.

• Decision Date: 20 April 1898
• Citation: 45 W.Va. 65
• Parties: State v. Allen.
• Court: West Virginia Supreme Court

45 W.Va. 65

State

v.Allen.

Supreme Court of Appeals of West Virginia.

Submitted January 22, 1898

Decided April 20, 1898.

(Brannon, President, dissenting.)

1. Criminal Law Trial Prisoner in Manacles Court's Discretion.

While the practice of keeping a prisoner manacled when on trial before a jury has always been held in disfavor in England, and also in this country, yet the trial court has a discretionary power therein, but a power which should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened; and such restraint should not be imposed except in cases of immediate necessity. (p. 68).

2. Criminal Law Prisoner in Manacles Record Court's Discretion.

When the record is silent as to whether there was or was not any valid excuse for retaining the irons upon the prisoner during trial, the appellate court will presume that the court below exercised a sound and reasonable discretion in not causing them to be removed. (p. 69).

3. Criminal Law Pleading in Person Felony Record.

A prisoner indicted for felony should be present in court, and should plead in person, and the record should show that fact. (p. 70).

4. Criminal Law Pleading in Person Record.

When the record shows that such prisoner was led to the bar of the court in the custody of the sheriff, and "thereupon the prisoner, for plea, says that he is not guilty in manner and form as the state in her indictment against him has alleged, and of this he puts himself upon the country," it is sufficiently shown that he pleaded in person. (p. 70).

5. Criminal Law Record Presence of Prisoner.

Where the record shows that at the beginning of the trial in any day's proceedings the prisoner was set to the bar in the custody of the sheriff, it will be presumed that he was present during the proceedings in the case the whole day, although it does not show at the close of the day's proccedings that the prisoner was remanded to jail. (p. 71).

6. Argument of Counsel Court's Discretion Record.

Counsel necessarily have great latitude in the argument of a case, and it is, of course, within the discretion of the court to restrain them; but with this discretion. the appellate court will not interfere, unless it clearly appears from the record that the rights of the prisoner were prejudiced by such line of argument. (p. 74).

7. Instructions Error.

When an instruction of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be touching such facts, it is error to give such instruction, although it may propound the law correctly. (p. 75).

Error to Circuit Court, Wyoming County.

James R. Allen was convicted of murder, and brings error.

Reversed.

John M. McGrath, for plaintiff in error.

Edgar P. Rucker, Attorney General, for the State.

McWhorter, Judge:

James R. Allen, indicted in the circuit court of Wyoming County for the murder of James Harvey Eerguson, otherwiseknown as Dr. JamesHarvey, wascommitted, and on the 27th day of March, 1897, the said court rendered judgment on the verdict of the jury, and sentenced him to be hanged on the 30th day of June, 1897, from which judgment said Allen obtained from this Court a writ of error and supersedeas, and assigned the following errors:

"First. The court erred in setting prisoner to the bar, arraigning him, and putting-him upon his trial, manacled with cuffs of iron. Second. The court erred in refusing to permit petitioner to cross-examine witnesses whose affidavits were filed in resistance to petitioner's motion to amend the record so as to show that he was absent from the bar of the court and the court room at the time the demurrer in this case was entered, considered, and overruled. Third. The record in this case does not show whether petitioner's plea of not guilty was pleaded by him in person or by attorney. Fourth. The record does not show the presence of petitioner on the 25th of March, 1897, at the conclusion of the proceedings of that day. Fifth. It does not appear from the record in this case how the twelve jurors who tried this case, or any of them, were selected and tried, or that they, or any of them, were selected from the twenty jurors who were examined and placed in the box. Sixth. It does not appear from the record that the juror T. F. Shannon, Sr., who signed the verdict of the jury in the case, is one of the jurors sworn for the trial thereof. Seventh. The record does not show that the jury was brought into court on the 24th day of March, 1897, in the custody of the sheriff of the county, or any of his deputies; nor does it show when or how said jury came into court on that day. Eighth. The court erred in permitting improper evidence to go before the jury, as will appear from defendant's bill of exceptions No. 2. Ninth. The court erred in permitting counsel for the state, in his concluding argument before the jury, to make improper statements. See defendant's bill of exceptions No. 3. Tenth. The court erred in giving instructions Nos. 1 and 2 asked for by the State, and in declining and refusing to give to the jury instructions Nos. 4, 6, and 7 asked for by petitioner. Eleventh. The court erred in passing sentence upon petitioner, there being no judgment of guilty pronounced upon the verdict of the jury in this case. Twelfth. The court erred in pronouncing the death sentence upon this petitioner without having first asked him what, if anything, he had to say why the court should not proceed to pass the sentence of the law upon him. Thirteenth. The court erred in passing sentence upon this petitioner, because it does not appear that the court had jurisdiction to try the case. The crime, if any was committed, is not shown to have been committed in Wyoming county. The venue has not been proved. Fourteenth. The verdict in this case is manifestly contrary to the law and evi- dence therein. The court erred in overruling petitioner's motions in arrest of judgment, to set aside the verdict of the jury in this case, and to grant him a new trial."

First assignment, the prisoner was set to the bar with iron cuffs upon his wrists: While this practice has always been held in disfavor in England, and also in this country, yet it seems to be a matter largely in the discretion of the court; and I must say that it is a discretion that should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened, and such restraint should not be imposed except in cases of immediate necessity. Whart. Cr. P1. & Prac. §540a. In Lee v. State, 51 Miss., 566, Syl. point 2, it is held that "a.prisoner undergoing trial should be free from shackles; but, if the court or sheriff deem them necessary to prevent escape, may order him kept in irons during trial, and this will not be ground for reversal." In People v. Harrington, 42 Cal., 165, it is held to be error, and the judgment reversed; but in that case the defendants, when arrainged, asked that the irons be removed from their limbs while they were being tried, and "the court refused to order the same to be done, and ruled that they should be tried while in irons, no circumstances or facts being shown to the court why a different rule should be enforced in this case than any other, the court being of opinion that no rights of defendants were violated by being tried in irons without their consent; to which ruling defendants excepted." In that case the syllabus is as follows: "Any action of the court, during the progress of a trial for felony, which deprives the defendant of a substantial legal right in the premises, or, to his prejudice, to any extent, withholds or abridges a substantial, legal, or constitutional privilege of a defendant, and by him claimed on the trial, is a proper subject-matter of review on appeal. By the common law the prisoner is entitled to appear for trial, upon his own plea of not guilty, free from all manner of shackles or bonds, unless there is danger of his escape. To require a prisoner, during the progress of his trial, to appear and remain with chains and shackles upon his limbs, without evident necessity as a means of securing his presence for judgment, is a violation of the common-law rule, and of the thirteenth section of the criminal practice act." It will be seen that in this case the defendants asked to have their shackles removed, and the court refused to have it done. To my mind, the true rule on this point is laid down by Justice Bristol in delivering the opinion of the court in the case of Territory v.Kelly, 2 N. M., 305: "When the record is silent as to whether there was or was not any valid excuse for retaining the irons upon the prisoner during trial, the appellate court will presume that the court below exercised a sound and reasonable discretion in refusing to order the irons to be removed." In the case at bar, however it seems to have been an oversight that the prisoner was brought in manacled; for, the moment the matter was called to the attention of the court, they were ordered removed, and were at once removed, in the presence of the jury. And it would seem, too, that the prisoner as well as his counsel, either thought nothing of it, or concluded it would have a tendency to create sympathy in the minds of the jury for the prisoner, as they never mentioned the matter until the State had rested and the most of defendant's witnesses had been examined, and the defendant himself was being cross-examined as a witness.

Defendant, in his brief, says: "Believing the second assignment to be without merit," and passes on to discuss the third assignment. I quite agree with the defendant as to the second, and after a careful examination of the record, I think his remark would apply just as well to the third. There is no question raised as to the prisoner's personal presence in court at every stage of the trial, except under the said second...