State v. Murphy
| Decision Date | 03 April 1923 |
| Docket Number | 4644. |
| Citation | 117 S.E. 147,93 W.Va. 477 |
| Parties | STATE v. MURPHY. |
| Court | West Virginia Supreme Court |
Submitted March 27, 1923.
Syllabus by the Court.
In a criminal prosecution, the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.
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.
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.
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, both of Clay, for plaintiff in error.
E. T England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and W. G. Brown, State Prohibition Com'r, of Summersville, for the State.
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:
"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 court instruct the jury as to the preponderance of the evidence. The latter part of the instruction was given by the court on its own motion.
Mr. Eakle (counsel for defense): While counsel for defendant requested the court to instruct the jury on the question of evidence, yet defendant, by counsel, objects to the instruction as given by the court, as not correctly propounding the law, as understood by counsel for the defendant.
The Court: Is there any part of the court's instructions particularly that you desire to call the court's attention to, Mr. Eakle?
Mr. Eakle: Particularly, you instructed them if they believe from the statement of the prosecuting witness, 'in the main.' I think that is incorrect. And you also instructed the jury that, if they believe from a preponderance of the evidence that the sale was made, they should convict.
The Court: You understand, gentlemen of the jury, the burden is on the State to prove the essential allegations of the indictment by a preponderance of the evidence, and the one question before you is whether or not intoxicating liquor was on that occasion delivered by the defendant Murphy to any of the parties, as testified to, at Midlothian Jewell store.
Mr. Eakle: Defendant, by counsel, again renews his objections to this instruction.
Objection overruled, and the defendant excepted."
The jury were clearly misdirected. Before they could find the defendant guilty, they must believe him guilty beyond a reasonable doubt, and a mere preponderance of evidence is not sufficient. The state would justify the instruction on two grounds: First, because the instruction, to the effect given was invited by defendant's counsel; and,...
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