State v. Morgan

• Citation: 36 W.Va. 260,13 S.E. 385
• Court: Supreme Court of West Virginia
• Decision Date: 20 June 1891
• Parties: State v. Morgan.

13 S.E. 385
36 W.Va. 260

State
v.
Morgan.

Supreme Court of Appeals of West Virginia.

June 20, 1891.

Jubt—Murder—Indictment—Evidence—Instructions.

1. The record shows that Jeremiah S. Peirpoint is one of the jury sworn in the case, and the verdict is signed by J. 8. Peirpoint. This will not affect the verdict.

2. An order to separate witnesses during a trial should always be granted, unless there be very strong reason against it, which can rarely exist; but it is not so far matter of right as to call for the reversal of a judgment where it has been refused unless it affirmatively appear that the party suffered injury from its refusal.

3. An exclamation made by a person at night, while in bed, not addressed to any one, is offered against her in evidence on trial for murder, and objected to, because made in sleep. It does not appear whether the person was asleep or awake. It was properly allowed to go to the jury.

4. To exclude a confession, it must not only be made under inducements of favor or fear, but such inducements must come from one in authority.

5. Motive in the commission of a crime is a material element for a jury in considering it, but it is not indispensable that it should be apparent to sustain a conviction. An instruction telling a jury that, if they find that no motive on the part of the prisoner existed for the commission of the crime, that itself is sufficient to raise a reasonable doubt of guilt, is bad.

6. An instruction should not single out one fact or element of the case, and make the case turn entirely on it, by telling the jury to find according to the hypothesis of that fact or element, ignoring all other material facts or elements.

7. The state is not bound to call all the witnesses present at the commission of the offense, nor a person so present who appears to be the only one present save the prisoner. It is the province of the prosecuting officer, not the court, to determine who shall be examined as witnesses for the state.

8. Upon an indictment in the form prescribed by section 1, c. 144, Code 1887, for murder, the state may prove any manner of killing or different manners of killing.

9. Discussion of principles on application in an appellate court to set aside a verdict on the ground that the evidence is not sufficient to warrant it.

(Syllabus by the Court.)

Error to circuit court, Tyler county; Thomas P. Jacobs, Judge.

R. S. Blair & Son, for plaintiff in error.

Alfred Caldwell, Atty. Gen., for the State.

Brasnon, J. On the 15th day of September, 1890, in the circuit court of Tylercounty, Mary Jane Morgan was sentenced to the penitentiary during her natural life for the murder of her husband, Jacob Morgan, and she has come to this court praying relief from her sentence.

The first ground assigned for reversal of the sentence is that the verdict finding the prisoner guilty is signed by J. S. Peirpoint, whereas the list of jurors sworn in the case does not show any juror of that name, and thus an unsworn juror tried the prisoner. The record does show in the panel a juror named "Jeremiah S. Peirpoint." Clearly, we ought to say that this juror, Jeremiah S. Peirpoint, wrote only the initials of his Christian name, as is very common, and that the juror sworn on the panel and the one signing the verdict are one and the same. Are we to say that while the jury was in custody of the sheriff, and kept together and secured, one of them escaped, and another man was substituted, or that another man got into the case? We think not, especially when an explanation of the apparent discrepancy so readily presents itself. Younger's Case, 2 W. Va. 581, does not compel us to such an unreasonable decision, which would bring the administration of criminal justice into ridicule; for there the juror signing the verdict was P. B. Shively, while the sworn panel showed no such name, the nearest approach to it being P. B. Smith.

The second ground on which we are asked to reverse the sentence is that the court refused to separate the witnesses on the prisoner's motion. 1 Bish. Crim. Proc. §§ 1188, 1189, lays down the law on the subject thus: "Justice will sometimes be

[13 S.E. 386]

promoted, and seldom hindered, by causing witnesses to be examined apart from one another. Therefore, almost as of course, yet not as of strict right or necessarily, the court, on motion of either party, will direct the retirement of witnesses to a separate room, to return and testify, one by one, as called." "The making or refusing of the order, and the form of it when made, are alike within the discretion of the presiding judge, not generally subject to revision by a higher tribunal." Whart. Crim. PI. § 569. states the law thus: "It is within the power of the court to order that the witnesses should be excluded from the court-room. At the same time, the action of the court trying the case will not be revised in this respect In error, unless it appear that manifest injustice lias been done." In 1 Thomp. Trials, §§ 275, 276, it is said that in civil and criminal trials it is a rule of practice for the judge, on motion of either party, to direct that the witnesses shall be examined out of the hearing of each other, and such an order is rarely withheld, but that "by the weight of authority the party does not seem entitled to it as a matter of right." In section 276, Thompson says: "According to a much prevailing view, whether the court will thus sequester witnesses, or, as it is sometimes called, ' put them under the rule, ' is a matter of sound judicial discretion, which discretion will not be revised on error or appeal, in the absence of an appearance of abuse." 1 Greenl. Ev. § 432, states that the order of separation "is rarely withheld; but, by the weight of authority, the party does not seem entitled to it as a matter of right." Old English authorities cited by Greenleaf hold that the matter is one of discretion, not of strict right. From these great text-writers, and an examination of many of the authorities which they cite, I conclude that the separation of witnesses ought, on the motion of either party, to be granted in the interest of the discovery of truth, and the detection and exposure of falsehood, unless strong reason be shown against it, which rarely occurs; but that it is not strictly matter of right, so that its refusal shall be ground for reversal, in the absence of the appearance of prejudice to the party. If the order were a matter of right, and not of discretion, then, from its refusal, the law would infer prejudice to the party; but, it not being a matter of right, it must in some way affirmatively appear that the party was in fact injured. It does not so appear in this case. Why this order, almost universally accorded, especially in grave criminal trials, was in this case refused, does not appear; but it does not appear that it worked harm to the prisoner. The cases are numerous holding that a witness remaining in court in violation of an order of separation may nevertheless be examined, his conduct bearing only on his credit, and subjecting him to proceedings for contempt. Hopper v. Com., 6 Grat. 684; Hey's Case, 32 Grat. 946, and citations; Gregg's Case, 3 W. Va. 705. The Case of Gregg, just cited, is urged upon us as ground for reversal. The syllabus there ctates that "it is the duty of the courts to separate witnesses, either in civil or criminal cases, if asked by either party." The constitution did not then, as now, require that the syllabus should be prepared by the court. The language is that of Judge Maxwell in delivering the opinion, and is not at all objectionable, as a general statement of the duty of the trial court; but Judge Maxwell did not mean to say that the non-observance of that duty would reverse a judgment, and, if he did, the expression is obiter dictum, because the question did not arise in the case; for in that case the court did make an order of separation, but, a witness having remained in the room, the question was whether he could be examined. Baron Alderson once said that it was the right of either party to require such separation; but, as the author of Thompson on Trials (section 277) says, " this was very different from holding that a judgment would be reversed because the trial court had refused to grant such an application." Not a single case or text-writer has been cited as squarely holding that a refusal to separate the witnesses is ground for reversal.

The third ground assigned for the reversal of the sentence is the admission in evidence of a certain ejaculation or exclamation of the prisoner, which it is claimed is not admissible, because made by the prisoner in sleep. Lottie Callahan, the prisoner, and a little girl were sleeping...