State v. Anis Murphy., No. 4644.

• Court: Supreme Court of West Virginia
• Writing for the Court: MEREDITH, J.
• Citation: 93 W.Va. 477
• Parties: State v. Anis Murphy.
• Decision Date: 03 April 1923
• Docket Number: No. 4644.

93 W.Va. 477

State
v.
Anis Murphy.

No. 4644

Supreme Court of Appeals of West Virginia.

Submitted March 27, 1923.
Decided April 3, 1923.

[93 W.Va. 477]

1. Criminal Law Burden on State to Prove Every Essential Allegation of Indictment Beyond Reasonable Doubt.

In a criminal prosecution the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.(p. 479).

2. Same Instruction That Burden on State to Prove Essential Allegation of Indictment by Preponderance of Evidence Erroneous.

An instruction in a criminal case given on behalf of the state which tells the jury that the burden is on the state to prove the essential allegations of the indictment by a preponderance of the evidence is erroneous. (p. 479).

3. Same Oral Instruction, Over Objection of Accused, Touching Material Matters in Issue, Erroneous.

Under section 22, chapter 131, Barnes' Code, 1923, upon the trial of a criminal case, it is error to give, over the objection of the accused, an oral instruction touching material matters in issue. (p. 480).

Error to Circuit Court, Clay County.

Anis Murphy was convicted of a violation of the prohibition laws, and he brings error.

Reversed, and new trial awarded.

B. C. Eakle and E. P. Alderson, for plaintiff in error.

E. T. England, Attorney General, R. Dennis Steed, Assistant Attorney General, and W. G. Brown, State Prohibition Commissioner, for the State.

Meredith, Judge:

Defendant was convicted of a violation of the prohibition laws and assigns error.

The indictment is in the statutory form and is sufficient.

The only substantial error assigned is that the court misdirected the jury. No written instructions were offered, but the following shows the directions given by the court,

including the objections made by defendant's counsel:

[93 W.Va. 478]

"Gentlemen of the jury, there will be no written instructions in this case. As to the law in the case, the Court instructs you that the burden is on the State to prove all the essential allegations of the case by a preponderance of the evidence; and, of course, unless that is done, you should find for the defendant. Furthermore, gentlemen of the jury, the Court instructs you that you are to pass on the evidence in this case and determine what the facts are. If you believe the evidence of the witness for the State, and that the facts as he stated them are, in the main, true, then you may find the defendant guilty. On the other hand, if you believe the evidence of the defendant, Murphy, and that the facts as he stated them are true, you will find the defendant not guilty. The credibility of the witnesses is a question to be passed on by the jury it is not a question of how many witnesses testify for one side or the other, but the question is, who does the jury believe? What does the jury think in the case? If you think that Anis Murphy on the occasion referred to had in his possession and delivered to any party down at the Midlothian Jewell store intoxicating liquor, it is your duty to find the defendant guilty; otherwise, find him not guilty.

Counsel for the defendant objected to the form of the foregoing instruction.

The Court: The foregoing instruction was given to the jury by the Court on request of the defendant's counsel that the...