State v. Musgrave. (Brannon
| Decision Date | 10 November 1897 |
| Citation | 43 W.Va. 672 |
| Court | West Virginia Supreme Court |
| Parties | State v. Musgrave. |
In a case where the evidence is entirely circumstantial, it is error in the court to instruct the jury that circumstantial o64 638; evidence is often more reliable than the direct testimony of
eye-witnesses, and that a verdict of guilty in such cases may rest on a surer basis than when rendered upon the testimony of eye-witnesses where memory must be relied upon, and where passions and prejudices may have influenced them, for the reason that it institutes a comparison between the two kinds of evidence mentioned, and instructs the jury as to the comparative weight of circumstantial evidence. (p. 677.)
It is error in the court to instruct the jury that, if they were of the opinion that any witness had willfully and corruptly testified to what was false, they were at liberty to re- 2. ject all of his testimony that was not corroborated by other testimony, for the reason that said instruction was calculated to mislead the jury, and was equivalent to telling them that, where a witness had sworn falsely in one tiling, the remainder of his testimony should have no weight with them unless corroborated, when they had a right to believe any portion of the testimony, whether corroborated or not, and the instruction invades the province of the jury. Thompson's Case, 21 W. Va. 741. (p. (577.)
2. Evidence Opinion Evidence.
The opinions of witnesses should never be received in evidence if all the facts can be ascertained and made intelligible to the jury, or if they are such as men in general are capable of comprehending and understanding, (p. 683.)
4. Evidence Opinion, Evidence Province of Jury.
The general rule is that witnesses must testify to facts, and not to opinions. They must only state facts, not draw conclusions or inferences. To do so is to invade the province of the jury. (p. 689.)
5. Expert testimony.
The object of all questions to experts should be to obtain their opinion as to matters of skill or science which are in. controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing controverted facts. (p. 684.)
6. Expert Testimony' Hypothetical Questions.
Although an expert may have heard all the testimony in the case, he can not be asked to give his opinion, based merely upon his having heard such testimony in the case, whenever there is a conflict therein, unless the same is hypothetically propounded to him. (p. 684.)
7. Expert Testimony Hypothetical Questions.
An expert can not be asked to give his opinion on doubtful facts in the case on trial, which remain to be found by the jury, but a similar case may be hypothetically put to him, based upon the evidence in such case. (p. 688.)
8. Expert Testimony Admissibility of Expert Testimony.
Where the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled or scientific witnesses is not admissible, (p. 687.)
9. Evidence Ill eg al Evidence Re vers al.
Where illegal evidence is admitted against the objection of a party it will be presumed that it prejudiced such party, and, if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for the reversal of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be cause of reversing the judgment. (p. 690.)
Error to Circuit Court, Monongalia County. Indictment against David Musgrave for murder. From a judgment of conviction, defendant brings error.
Reversed.
Okey Johnson and George C. Sturgiss, for plaintiff in error.
Henry H. Pendleton and T. S. Kiley, Attorney General, for the State.
English, President:
David Musgrave was, on the 15th day of February, 1895, indicted for the murder of his wife, Emeline Musgrave, by a grand jury of Monongalia County, and on the 26th day of June, 1895, was found guilty of the charge contained in said indictment, and the jury further found that he be punished by confinment in the penitentiary. On the 27th day of June, 1895, the prisoner moved the court to set aside the verdict of the jury, and grant him a new trial, upon the following grounds: (1) Because the verdict was contrary to the lawr and the evidence in the case; (2) because the court admitted on the trial improper evidence on behalf of the State; (3) because the court refused to admit proper evidence offered by the defendant; (4) because the court misdirected the jury in its instructions to them on behalf of the State, and in refusing to give an instruction asked for by the defendant; (5) because of misconduct of the jur, which motion was, on consideration by the court, overruled, and the inusoner excepted, and thereupon the court rendered judgment upon said verdict, and sentenced the prisoner to confinement in the penitentiary for the term of his natural life, and from this judgment the prisoner applied for and obtained a writ of error and supersedeas. Upon this writ of error the case was heard at the January term, 1896, and the judgment of the court below was affirmed. Subsequently a petition for a rehearing of the writ of error was presented and upon consideration was allowed, and at the March special term of this Court, 1897, the case was reargued, and is now before us for considera tion upon the reargument. During the trial various exceptions were taken to the rulings of the court upon instructions which were allowed and refused, and upon the admission of testimony to the jury, which counsel for the prisoner regarded as improper, and the entire testimony is set forth in a bill of exceptions as part of the record.
The first error assigned and relied on by the plaintiff in error is that the court erred in overruling his motion to quash the indictment. This assignment, however, does not appear to be insisted upon by counsel for the prisoner in their briefs, and, as the indictment appears to conform to the statute, we suppose the motion was made out of abundant caution.
The next assignment of error relates to the form of the oath administered by the jury. The jury was sworn to "well and truly try and true deliverence make between the State of West Virginia and David Musgrave, the prisoner at the bar, whom you shall have in charge, and a true verdict render, according to the evidence, so help you God." It is claimed that they should have been sworn "a true verdict to render according to the law and the evidence." The oath administered was exactly in accordance with the form prescribed. (Matth Or. Law, p. 253, note); also with the form prescribed in Robinson's Old Forms, and the form used in this case is the one which has been used in felony cases, both in Virginia and in this State, for very many years, and came to us from the English practice, and we should depart with reluctance from those time-honored forms. It is true that in Arkansas the jury, being the judges as well of the law as the facts (as they have been held to be in this State), must be sworn to try the case according to both. The form of the oath, by analogy to the form used in England, being: "You shall well and truly try, and a true deliverance make, between the state of Arkansas and the prisoner at the bar whom you shall have in charge, and a true verdict give according to the law and the evidence, so help you God." Patterson v. State, 2 Eng. (Ark.) 59. But if we felt at liberty to make an innovation on the time-honored practice which has come down to us from England and the mother state, can we say that the prisoner was prejudiced by the fact that the jury that tried him was not sworn a true verdict to give according to the law and the evidence? The record clearly shows that this verdict was not given upon the evidence alone, but by applying the law to the evidence. They were instructed as to the law by the court, and in the light of these instructions they found the prisoner guilty of murder in the first degree as charged in the indictment, and they further found that he be punished by confinement in the penitentiary. This they could not have done without applying the law as they understood it and received it from the court to the facts adduced in evidence before them. 1 do not, therefore, consider it necessary to change the form of the oath to be administered in a felony case so that they should be sworn to render a true verdict according to law and the evidence.
It is further claimed by the plaintiff in error that the court erred in giving each and everyone of the instructions given for the State, and it is insisted by counsel for the prisoner that the circuit court erred in giving instruction No. 3 asked for by the State, and objected to by the prisoner, which reads as follows: It is earnestly contended by counsel for the prisoner that this instruction was erroneous for the reason that it dealt with the weight of the evidence. Now, a review of the testimony in the cause shows that the State rested its case, and asked that the prisoner be convicted entirely upon circumstantial evidence. If David Musgrave committed the deed of which he is accused in the indictment,...
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