State v. Donohoo
| Decision Date | 29 September 1883 |
| Citation | 22 W.Va. 761 |
| Parties | STATE OF WEST VIRGINIA v. DONOHOO. |
| Court | West Virginia Supreme Court |
Submitted Sept. 19, 1883.
1. It is not error upon the trial of an indictment for shooting with intent to kill to charge the jury in general terms " that if all the evidence and circumstances of the case warrant the finding, they may find the prisoner guilty of the offence charged in the indictment, or if all the facts and circumstances of the case warrant such finding, the jury may find the prisoner guilty of a part of the offence charged in said indictment, whether such part be a felony or misdemeanor." If the prisoner had desired the court to give the jury more specific instructions as to what they might find, if warranted by the evidence, he should have asked the court to so instruct the jury. (p. 763.)
2. It was not error to refuse to instruct the jury, that evidence of good character cannot be received in behalf of the prisoner, until his character has been assailed. (p. 764.)
3. In reviewing the judgment of the court below the Appellate Court will not reverse the judgment and set aside the verdict, on the ground that there is a doubt of its correctness; but the court must be satisfied, that the evidence is plainly insufficient to warrant the verdict. (p. 765.)
The opinion contains a statement of the facts of the case.
John H. Riley for plaintiff in error.
Attorney-General Watts for the State.
JOHNSON, PRESIDENT:
Harrison Donohoo was on the 3d day of November, 1882, indicted in the circuit court of Jackson county for shooting with intent to kill. To the indictment he pleaded not guilty.
He was tried before a jury, and on the 29th day of March, 1883, the jury rendered a verdict of not guilty of malicious shooting with intent to kill, but of " unlawfully shooting with intent to kill." On March 21, 1883, the court entered judgment upon the verdict, fixing his term in the penitentiary at two years.
To this judgment the prisoner obtained a writ of error.
The prisoner saved three bills of exceptions to the rulings of the court. The first bill of exceptions is to the giving of the following instruction to the jury: " The jury are instructed that if all the evidence and circumstances of the case warrant such finding, they may find the prisoner guilty of the offence as charged in the indictment, or if all the evidence and circumstances of the case warrant such finding, the jury may find the prisoner guilty of part of the offence charged in said indictment, if such part be substantially charged in said indictment, whether such part be a felony or a misdemeanor." The giving of this instruction was objected to by the prisoner, the objection overruled, and the instruction given, and the court added to the instruction the words: " That under the indictment in this case the jury might, if warranted under all the evidence and circumstances of this case, find defendant guilty of an assault, in which case the punishment would be by fine." The prisoner excepted.
We think there is nothing in this instruction or the addition made thereto by the court to the prejudice of the prisoner. The jury is instructed in general terms, that if the evidence warrants it, they may find the prisoner guilty of the offence charged in the indictment, or of a lower offence, even a misdemeanor. This is correct. If the defendant had wished the charge to be more specific, it was his right to ask it. He did not do so, and we see no error in giving the instruction in the general form, as it states the law correctly. It is objected to the addition made to the instruction by the court, that it was immaerial that the jury should know the penalties prescribed for the various offences charged. This is true, since the court now under our statute fixes the punishment in both felony and misdemeanor cases. But the prisoner in this case clearly was not injured by the court telling the jury that an assault was punishable by fine.
The second bill of exceptions sets out, that in the argument " one of the attorneys appearing for the State expressed regret that defendant had not put his character in issue, as he had a right to do; that if that had been done, the State would have shown defendant to have a bad character, and that defendant was a terror to the neighborhood where he lived; defendant's counsel having insisted that defendant was presumed innocent until proved guilty, and stood as fair before the jury as any person." " When the attorney for the State made the remark above quoted. attention was called to it by counsel for accused, when said attorney for the State replied, that he would not have made such a statement, if the character of the accused had not been mentioned by his counsel; and when the arguments of counsel were concluded, and before the jury had retired, the defendant asked the court to give to the jury four several instructions numbered 1, 2, 3 and 4, respectively, in words following:
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