State v. Cobbs
| Decision Date | 19 June 1895 |
| Citation | 22 S.E. 310,40 W.Va. 718 |
| Parties | STATE v. COBBS. |
| Court | West Virginia Supreme Court |
Submitted June 11, 1895
Syllabus by the Court.
1. It is not error for a court to omit to instruct a jury that it may punish murder in the first degree with either death or confinement in the penitentiary, unless asked to do so.
2. It is error to refuse to do so when asked, though not asked until the jury announced its verdict, but before its discharge.
3. The law does not fix any time for instructions. The court may fix it by rule.
4. A court may, for good reason, return a jury to its room to further consider and amend or alter its verdict, at any time before a verdict is received by the court and the jury discharged.
5. A court, though asked, is not bound to instruct a jury generally as to the law of the case. Instructions as to specific law points ought to be asked. A court may, without request, if it think the interests of justice and a fair trial call for it, instruct a jury in matter of law, the instruction being sound in law and relevant to the evidence but it is not bound to do so unless asked; but, if asked to give such proper specific instructions, it must do so.
6. The court suggests privately to counsel of prisoner the prudence of instructing the jury of its power to punish murder in the first degree either with death or by confinement in the penitentiary, and counsel says that he prefers to take chances rather than call the jury's attention to that law at that time. This does not estop the prisoner from asking such instruction later, even after the jury has announced a verdict of murder in the first degree, but before it is received or the jury discharged.
7. Affidavit of jurors that they were ignorant of the law that it is with a jury to say whether murder in the first degree shall be punished with death or confinement in the penitentiary cannot be read to impeach the verdict.
8. As a general rule, affidavits of jurors to impeach their verdict cannot be read.
Error to criminal court, Mercer County.
Peter Cobbs was convicted of murder, and brings error. Reversed.
J. W Hale, for plaintiff in error.
T. S Riley, Atty. Gen., for the State.
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 a 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 be 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 by 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 erron eous, was ground for reversal. See its form, 3 Rob. Prac. (old) 175. See Allen's Case, 2 Leigh, 727. Our Code, § 2, c. 159, abolishes such arraignment, sheriff's proclamation, and clerk's charge. 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 been a 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 power 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 Grat. 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. Proc. §§ 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 judge must not state the evidence, or discuss or give or intimate his opinion upon it. If anything drops from him, even casually or inadvertently, in giving instructions or otherwise, indicating an opinion on the weight or effect of the evidence or the credibility of a witness, it is generally ground for reversal. Dejarnette's Case, 75 Va. 867; Whitelaw's Ex'r v. Whitelaw, 83 Va. 40, 1 S.E. 407; State v. Hurst, 11 W.Va. 54; State v. Thompson, 21 W.Va. 741; State v. Greer, 22 W.Va. 800; State v. Sutfin, Id. 771. Thus, in this state, no duty rests on the judge to instruct on the general features of the case, law, or fact. I have said that the matter of instructing as to punishment falls under the law of instructions. Under that, it was not the duty of the judge, unasked, to give the instruction. We are not discussing the question whether it is error for a judge, without request by either side, to give instructions, as in Gwatkin's Case, 9 Leigh, 678. I do not doubt that, as held in Blunt's Case, 4 Leigh, 689, the court may properly instruct the jury on a question of law when, in its opinion, justice requires such interposition, though it be not asked by either party. But the question in point now is whether a court is bound, without request of specific instructions, to give them. It is clearly not so under our practice. Dejarnette's Case, 75 Va. p. 877; Rosenbaums v. Weeden, 18 Grat. 785; 4 Minor, 747; State v. Caddle, 35 W.Va. 73, 12 S.E. 1098. The cases of Kitty v. Fitzhugh, 4 Rand. (Va.) 600, Brooke v. Young, 3 Rand. (Va.) 106, and Womack v. Circle, 29 Grat. 192, holding that a party must ask instructions on specific points, and that even when asked the court is not bound to instruct generally on the law of the case, logically negative the claim that it is error for a court not to instruct when not asked. The party must ask specific instructions.
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 correctly. It is a matter of clear and important right that a party has right to ask a proper instruction, and have it given, and it is error to refuse it. Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W.Va. 155, 11 S.E. 1009. Here is an instruction asked, properly stating the law, vitally important to the defendant, as on it perhaps hung his life, refused. This is all you can make out of it so far, and its refusal is error, unless, under the circumstances, it can be justified. Strong reason is called for, in the very nature of the case, to warrant this refusal. The attorney general says it was asked too late. It was not asked, as would have been proper, before the retirement of the jury; but when the jury came into court, and after its verdict had, by direction of the court, been read aloud, but before it was received by the court, while the jury was still present, and before its discharge, the instruction was asked. The object of the law was to give a fair trial. The law does not absolutely fix any time for...
To continue reading
Request your trial