State v. Samuel McCausland.

• Decision Date: 17 September 1918
• Citation: 82 W.Va. 525
• Court: West Virginia Supreme Court
• Parties: State v. Samuel McCausland.

82 W.Va. 525

State

v.Samuel McCausland.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1918.

Decided September 17, 1918.

1. Criminal Law View of Premises Absence of Defendant.

Upon the trial of one charged with murder, it is error to take the jury to the scene of the alleged crime, and there in the absence of the defendant have the same re-enacted in the presence of the jury, for the purpose of determining whether or not a witness who testified as to how the killing occurred could have observed the same from the place at which he claimed to have been at the time. (p. 527).

2. Same Trial View of Premises.

Where in the trial of any ease it appears to the court that a view of the premises involved in the hearing would enable the jury to arrive at a better conclusion, or would better inform it as to actual conditions, it is proper for the court to allow such view, (p. 527).

3. Same View of Premises Consideration as Evidence.

Such a view is for the purpose of informing the jurors upon any pertinent inquiry being made in the trial of the case, and the things which they observe upon such view, so far as they are pertinent to show anything proper to be proved, are to be considered by them the same as any other evidence introduced in the case. (p. 527).

4. Same Presence of Defendant Waiver.

One charged with a felony cannot waive his right to be present at the time of the introduction of all evidence offered upon the trial. (, p. 529).

5. Same Appeal Bill of Exceptions Contradicting Court's Order.

A bill of exceptions taken and properly signed showing that the accused was not present when a view was had by the jury of the scene of the tragedy does not contradict the court's order showing that he left the court house with the jury, and returned with it after the view was had. The bill of exceptions simply supplies facts not shown by the order. (p. 530).

6. Same Conduct of Court Examination of Witnesses.

It is the duty of the trial judge in any cause to refrain from expressing any opinion upon the weight to be given to the evidence of any witness, but it is likewise his duty to see that in the examination of witnesses they understand the questions pro& pounded to them before they are required to answer, and that counsel in ashing a question does not place upon the witness's former statements a strained or unwarranted construction. (p. 531).

7. Same Evidence Children of Deceased.

Upon the trial of one charged with murder it is improper to admit evidence showing the number of the dead man's children and their ages, when the family of such deceased party is in no wise connected with the difficulty which resulted in his death, (p. 532).

8. Jury Selection Trial for Felony Disqualification by Relation-

ship.

In the selection of a jury for the trial of one charged with felony it is not error for the trial court to reject a juror who stands in such a relation to the accused that his judgment may be affected, or he may be embarrassed thereby, even though such relationship may not amount to a ground of challenge for cause, when his place is taken by another juror entirely free from any such relationship. The trial court in the selection of a jury may exercise a sound discretion in this regard, and when the rejection of a juror is based upon such a reason, and his place filled by one entirely free from any such exception, a verdict will not be set aside because thereof. (p. 532).

9. Homicide Character of Deceased Admissibility of Evidence.

Where one charged with murder admits the killing and attempts to justify his act upon the ground of self defense, it is proper for him to prove that the deceased was a violent and dangerous man, not only at or about the time of the killing, but that he had been such continuously for many years prior thereto. (p. 533).

10. Same Evidence Verdict of Coroner's Jury.

Upon the trial of one charged with murder it is improper to admit as evidence the verdict of a coroner's jury, either for the purpose of proving the death of the deceased, or the agency of the accused therein. (p. 533).

11. Criminal Law Instructions Reasonable Doubt.

Upon the trial of one charged with felony, it is improper to instruct the jury that they should doubt as jurors only when they doubt as men, as such an instruction is in effect an invitation to the jury to disregard the oath taken by it before entering upon the trial of the case. (p. 534).

12. Same.

Upon a trial of one charged with felony an instruction which directs the jury to acquit the accused, if any single member thereof has a reasonable doubt as to his guilt, is properly refused. (p. 535).

Error to Circuit Court, Mason County. Samuel McCausland was convicted of involuntary manslaughter, and brings error.

Reversed, and cause remanded.

Rankin Wiley and B. H. Blagg, S. B. Avis and Somerville & Somerville, for plaintiff in error.

E. T. England, Attorney General, and Henry A. Nolte, Assistant Attorney General, for the State.

Ritz, Judge:

The defendant, upon the trial of an indictment charging him with murder, was convicted in the Circuit Court of Mason County of involuntary manslaughter, and prosecutes this writ of error to reverse that judgment, upon the grounds that the jury was permitted to make a view of the scene of the tragedy in his absence, that the court made improper remarks in the presence of the jury during the trial of the case, that improper evidence was permitted to go to the jury, and proper evidence offered by the defendant rejected, and that the jury was improperly instructed.

After the State had closed her case an order was made for the jury to view the scene, of the tragedy. Pursuant to this order the jury was taken to the place where the killing occurred in the custody of the sheriff, accompanied by the judge, and by the accused, as well as the counsel on both sides. After a general view of the ground was had the prisoner, as he states, believing that the view was over, went to his house nearby to get his mail and attend to some other business matters, and while he was there a demonstration was had by the jury for the purpose of determining whether the parties to the tragedy could have been seen from a point at which a witness testifying for the state claimed to have seen the killing. This witness claims to have been at her house, which she testified was about a hundred yards from the scene of the tragedy, and from that point saw the defendant strike the deceased with a shovel while he was retreating. The contention of the defendant was that the scene of the tragedy was not visible from this house, and that the distance between the two points was about three hundred and fifty yards instead of one hundred yards, and it was for the purpose of clearing up this conflict that this demonstration was had in the absence of the accused. The bill of exceptions recites that the attention of the court was called to the absence of the accused at the time by his counsel, and exception taken to the action of the court in permitting the experiments to be made. It is earnestly contended by the defendant that this was error, that the demonstration made by the jury on that occasion was the taking of evidence, which, being done in his absence, is ground for reversal. As to whether or not a view by the jury of some place connected with the matter before it is the taking of evidence is a question upon which there is a very decided conflict of authorities. Many of the courts hold that it is not, but is a part of the deliberations of the jury in arriving at a verdict; others say it is not the taking of evidence, but is simply allowing the jury to see the physical conditions in order that it may better understand the oral testimony; while still others assert that it is the presentation of physical conditions to the jury from which it may be informed as to some pertinent matter of inquiry. The purpose of introducing evidence is to inform the jury of the transaction in regard to which the trial is had, and anything pertinent to that end is proper for the purpose. Frequently in the trial of such cases material objects are introduced before the jury. In homicide cases the garments worn by the deceased are often introduced for the purpose of showing the place at which the wounds were inflicted. Can it be said that this is not evidence? It is stronger and more convincing to the jury than the oral testimony of any witness could possibly be. There can be no difference in the proffer of objects to the jury in the court room and such exhibition by taking the jury to view such objects, when they are not susceptible of being brought into court. The reason the jury is taken to view the ground is simply because it is physically impossible to bring it into the court room, and it is therefore necessary, in order that the jury may have.all of the light obtainable upon the subject to which the inquiry is directed, that it be taken and shown these objects which form a part of the subject of inquiry. In this case can it be doubted that the actual demonstration made upon the ground to show' whether or not certain objects were visible from a certain point was the strongest sort of evidence that could be introduced upon that question? Likewise, the view of the jury was the very strongest evidence as to the distance between the scene of the tragedy and the place where the witness was standing whose testimony was questioned. A dozen witnesses might testify that they observed this tragedy from a certain point, and the jury would not believe a single one of them, if from the observation made upon the ground the physical conditions were such as to preclude the possibility of the truth of the witnesses' statements. This view is fully sustained by what we consider the better authorities. 2 Wigmore on Evidence, p. 1372. etc. and authorities there cited; 3 Jones on Evidence, § 408 etc.; Underhill on Criminal Evidence, § 230; Bishop's New Criminal Procedure, § 965; Wharton's Criminal...