State v. Romine, 14154
| Decision Date | 16 December 1980 |
| Docket Number | No. 14154,14154 |
| Citation | 272 S.E.2d 680,166 W.Va. 135 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Franklin Maywood ROMINE. |
Syllabus by the Court
1. "An instruction which does not correctly state the law is erroneous and should be refused." Point 2, Syllabus, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).
2. In a criminal trial, where it is clear that an erroneous instruction was given and this Court cannot confidently declare beyond a reasonable doubt that such instruction in no way contributed to the conviction or affected the outcome of the trial, the conviction must be reversed and a new trial granted.
Larry N. Sullivan, Parkersburg, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal from a final order of the Circuit Court of Wood County. The defendant, Franklin Maywood Romine, was indicted by the grand jury of said county, the indictment containing two counts. The first count charged him with the crime of burglary and the second with rape. Upon conviction by a jury the court sentenced him to a term of one to fifteen years on the burglary charge and to a twenty year term for rape. Reversible error having been committed, we reverse and remand the case for a new trial.
The principal assignment of error concerns State's Instruction No. 1, the pertinent part of which reveals the error and reads as follows:
If you find FRANKLIN MAYWOOD ROMINE guilty of rape the law requires that he be punished with death or with confinement in the penitentiary for life, in the discretion of the court, unless you in your discretion find and add to your verdict a recommendation for mercy, and if you in your verdict recommend mercy, the law requires that he be punished with confinement in the penitentiary for not less than five nor more than twenty years.
As in most cases, particularly those involving the charge of rape, the facts are in great dispute. It is the function of the jury to determine the facts from the evidence. It is the responsibility of the court to instruct the jury as to the law to be applied to those facts. Applying the law to such facts, the jury then determines the guilt or innocence of the accused. It clearly follows that if the court's instructions are erroneous as to the law the jury's ultimate finding will likely be erroneous. Therefore, it is imperative that the court's instructions properly inform the jury of the applicable law.
The above quoted portion of State's Instruction No. 1 reflects a wholly erroneous statement of the law. In 1974, when this crime was committed, the penalty for rape was confinement in the penitentiary for life, without the possibility of parole. However, if the jury recommended mercy the penalty was confinement for a term of not less than ten or more than twenty years. The death penalty statute having been repealed in 1965, there was no possibility of such sentence legally having been imposed upon this defendant. Clearly, then the above instruction was erroneous. We conclude that such error was prejudicial and compels a reversal of the conviction.
In this jurisdiction it has been established that the giving of an erroneous instruction raises a presumption of prejudice. State v. Mason, W.Va., 249 S.E.2d 793 (1978). As stated in Orndoff v. Rowan, 156 W.Va. 205, 192 S.E.2d 220 (1972) and Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330 (1966), "An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction." We cannot say with any degree of certainty what effect the erroneous instruction had upon the jury; or, in the language of State v. Mason, supra, we cannot "confidently declare beyond a reasonable doubt that such instruction in no way contributed to the conviction or affected the outcome of the...
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