State v. Sid Green et ah.
| Decision Date | 25 May 1926 |
| Docket Number | (No. 5563) |
| Citation | 101 W.Va. 703 |
| Parties | State v. Sid Green et ah. |
| Court | West Virginia Supreme Court |
1. Criminal Law Instruction Singling Out Accused and Charg-ing Jury Especially As to His Credibility As Witness is Improper (Code, c. 152, § 19).
In a criminal case an instruction is improper and erroneous which singles out the accused and charges the jury specially as to his credibility as a witness. (p. 705.)
(Criminal Law, 16 C. J. § 2479.)
2. Same Instruction Should Not Authorize Jury to Apply Maxim of Falsus in Uno, Falsus in Omnibus, Except
Where it Believes From Evidence That Witness Testified Falsely to Material Fact.
An instruction should not authorize the jury to apply the maxim of falsus in uno, falsus in omnibus, except where the jury shall believe from the evidence that a witness testified falsely as to a material fact. (p. 707.)
(Criminal Law, 16 C. J. § 2447.)
Error to Circuit Court, Boone County.
Sid Green and others were convicted of owning, operating, and having an interest in a moonshine still, and they bring error.
Judgment reversed; verdict set aside; new trial awarded.
Leftwich & Shaffer, for plaintiffs in error.
Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.
The defendants were found guilty of owning, operating, and having an interest in a moonshine still, by a jury of Boone County, and by the Circuit Court thereof given the minimum sentence under the statute.
Prohibition Officer Lee Cook, who is now dead, and Constable Landen White found and watched a barrel of mash hidden in a wood in Boone County. About dark the four defendants came to the place where the mash was concealed. White testified in effect that the defendants brought with them a big copper kettle, which they set up on some rocks; that the weather indicated an approaching storm which the defendants discussed, and after examining the mash, said it would do until the next night; that the defendants then picked up the kettle and started to leave; that the officers recognized all four of the defendants, ordered them to halt, and when they started to run, fired to scare them; that Otis Green was arrested then, but the others ran away and were arrested next day; and that the witness found at the place where the defendants had been two kettles, a copper worm, six half-gallon cans, a bag of flour, and some other articles, ail of which apparatus is commonly called a moonshine still.
The defendants deny taking a kettle with them and say that they were out looking for a lost or stolen kettle belonging to Sid Green's mother; that they had heard of a kettle being at the place where the officers saw them, and had come to investigate; that they did not own, operate or have an interest in the apparatus found; and that they ran because the officers fired upon them. One of the defendants denied the conversation attributed to them by White.
Error is charged to the trial court because of the admission in evidence of certain statements of defendants while on preliminary examination before a justice, and because of two instructions given at the request of the State.
The evidence complained of was not made the subject of a special bill of exceptions, or specified as a ground of the motion for a new trial. Therefore under Point 4, Syllabus, State v. Noble, 96 W. Va. 432, the error in respect to this evidence will be deemed to have been waived.
State's Instruction No. 1 is: "The Court instructs the jury that in considering all the evidence in this case they may consider the evidence of the prisoners and how far, if at all, their interest in the case might bias or prejudice their testimony, and you will give their evidence and all other evidence in the case such weight as you may think it entitled to."
Defendants cite State v. Vest, 98 W. Va. 138, which condemned an instruction similar in all respects to the one in this case as follows:" An instruction is disapproved which singles out the testimony of the accused in a trial for a criminal offense and tells the jury that they should take into consideration his interest in the result of the case and how far it might bias or prejudice his testimony, in determining the weight and credibility to be given to his evidence."
The Attorney General admits that "The instruction perhaps should be condemned", but does not consider it cause for reversing the case. It is true that the earlier decisions re- garded such instructions with leniency; but the trend of modern authority is otherwise. So says Randall in the latest work on instructions, published in 1922. ...
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