State v. Kerns.

• Decision Date: 02 December 1899
• Citation: 47 W.Va. 266
• Parties: State v. Kerns.
• Court: West Virginia Supreme Court

47 W.Va. 266

State

v.Kerns.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1899

Decided Dec. 2, 1899.

1.i nstruction Opinion.

Instructions given by the trial court, on its motion, in a felony ease, which may convey to The jury the opinion of the court as to the guilt of the accused, are improper, (p. 269.)

In st ructions Evidence.

Instructions asked by the accused which properly propound the Jaw, are justified by the evidence, and present to the jury a phase of the case not presented in other instructions, should be given, and it is reversible error to refuse them. (p. 272.)

Error to Circuit Court, Tucker County. Fred D. Kerns was found guilty of murder, and brings error.

Reversed.

W. H. Kelley and J. P. Scott, for plaintiffs in error. Edgar P. Rucker, Atty. Gen., Wm. G. Coni.ey and E. M. Keatley, for the State.

Dent, President:

At a circuit court held for the county of Tucker on Thursday, the 22d day of June, 1899, Fred D. Kerns, on the verdict of a iury, was sentenced to the penitentiary for the period of his natural life for killing Lucy Day. His defense was, "Not guilty." The facts are as follows: The prisoner and the deceased were lovers. She was single. He was married, but had been some time parted from his wife, from whom he was seeking a divorce, with the ostensible object of marrying the deceased. She believed him to be single, and expected him to marry her. Their intimacy had continued for a considerable period, and resulted in sexual cohabitation between them. At the time of her death he was visiting at her parents' home, and they occupied the same room and bed. She was pregnant. About twenty minutes of twelve o'clock, midnight, the report of a revolver was heard in their room. Mrs. Day, her mother, immediately entered the room, and found her lying on the bed, and the prisoner standing up. He said: "Mother, Lucy has shot herself. Oh, what shall I do? Oh, my God! what have I clone?" To the brother coming in, he says: "Riley, here is the revolver. Shoot me, shoot me, shoot me." The prisoner stated that he was asleep, when the report of the revolver awakened him, and Lucy fell back on him; that he immediately got up, laying her back on the bed, and then her mother came in. The revolver belonged to Lucy, who kept it loaded in her trunk, with the key tied to a string around her neck. It is evidenced by one witness that on that evening he saw her take it out of her trunk and hide it about her person. The wound was directly over her heart, was burned and blackened with powder, and no blood flowed therefrom, while she lay as if sleeping. The revolver was found lying on the bed. There are many other little matters of detail brought out in the evidence which are not necessary to repeat here, as no comment on the weight of the evidence is intended. The question submitted to the jury was as to whether she committed suicide, or was killed by the prisoner.

At the instance of the state the court gave the following instruction, to which the prisoner objected, to wit: "The court instructs the jury that the term 'reasonable doubt' does not mean every vague conjectural doubt, but it is a substantial doubt a reasonable hypothesis arising from the evidence or lack of evidence inconsistent with the theory of the defendant's guilt." The court refused the following instruction asked by the prisoner: "The court further instructs the jury that, if any one of the facts necessary to show the guilt of the defendant is consistent with his innocence, then the jury must acquit." These instructions are equally intelligible to a jury composed of ordinary men and too many lawyers, and there is no good reason why the jury should not have them. If thev have doubts of their meaning, they should give the prisoner, and not the state, the benefit of the doubt. With this under- standing-, it does not appear even doubtful that either the giving or the withholding of either of these instructions would deprive the prisoner of a fair trial. They both apparently propound the law correctly to a jurist, when carefully sifted and rightly understood, but what effect they might have to mislead and puzzle the mind of a juryman is beyond the pale of judicial discernment. The last instruction is easily understood to mean that, if there is a weak link in the chain of evidence necessary to convict, the prisoner is entitled to the benefit of the doubt thereby raised. This is undoubtedly true, and the instruction properly propounds the law; and the court, having given the state's instruction, should have given the prisoner's. The jury could as easily understand the one as the. other, and thus arrive at the true hypothesis. State v. Fianagan, 26 W. Va. 117.

When the jury was about to be sent toits room, "the court, on its own motion, taking the indictment in his hand, instructed the jury in the following words, to wit: 'Gentlemen of the Jury: I think it would be proper for me to say to you that, if you should find the defendant guilty of murder in the first degree, you could further determine the mode of punishment, and say whether it should be by death, or confinement in the penitentiary for life. If you should determine that he ought to be confined in the penitentiary, you will make that a part of your finding and of your verdict. You can, under the indictment, find the defendant guilty of murder in the second degree.' Thereupon, the jury being about to retire, the counsel for the defendant suggested to the court that he ought also to say to the jury that the jury could find the defendant not guilty; and thereupon the court said to the jury: 'Of course, gentlemen, you could find the prisoner not guilty at all, if you thought the evidence justified such a finding; but in all your findings you must be governed by the evidence.' " To these remarks of the court the prisoner objected. These words might be very harmless, or they might be disastrous to the prisoner, according to the accent and manner of the court in using them. They might very easily be made to convey the sense that the court was fully convinced of the guilt of the prisoner, and for the jury to find otherwise they must disregard the evidence. Manner and accent cannot be made part of the record, and such language, uttered at the time it was, could be made very suggestive to the jury, at least, from which they could draw their own inferences as to the opinion entertained by the court. Hence the rule that, if such instructions or remarks may have prejudiced the prisoner, they are sufficient grounds of error to justify the granting of a new trial. Slate v. Staley, (W.Va.) 32 S. E. 198; Neillv. Produce Co., 38 W. Va. 228, (18 S. E. 563); State v. Cobbs, 40 W. Va. 721, (22 S. E. 310); State v. Sutfin, 22 W. Va. 771; State v. Greer, Id. 800; State v. Hurst, 11 W. Va. 54; McDowells Ex'r v. Crawford, 11 Gratt. 405. In Dejarnette v. Com., 75 Va. 867, it was held that "no remarks which have a tendency to intimate the bias of the court on the character or weight of the testimony should be indulged in by it." "The right to a decision on the facts by the jury uninfluenced and unbiased by the opinion of the judge has been deemed worthy of a constitutional guaranty. It cannot be lawfully denied by the simple evasion of looking at the counsel, instead of at the jury." State v. Harkin, 7 Nev. 381. "From the high and authoritative position of a judge presiding at a trial before jury, his influence with them is of vast extent; and he has it in his power, by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties." McMinn v. Wkclan, 27 Cal. 300, 319. The trial judge should exercise great...