State v. Thompson , 1882 W. Va. LEXIS 92 ( 1882 )

Green, Judge,

announced the opinion of the Court:

The petition for a writ of error in this case, was founded as T conceive upon serious misconception of the true relations in this State, which exist between a court and a jury in the trial of any case, either civil or criminal. And also upon a misconception of the grounds on which the Appellate Court in a criminal case, will reverse the judgment of the court, below, when a now trial was asked and refused by the court below. The petition is obviously based on the assumption, that it was the duty of the court below to have awarded a new trial, simply becaxi.se in its judgment there was a reasonable doubt as to the guilt of the prisoner, and that if this Court can be satisfied that such reasonable doubt exists, that it is the duty of this Court to reverse the. judgment of the circuit court and award a new trial.

If such a principle was acted upon by this Court, it would be it seems to me obviously an unjustifiable interference on the part of the Court with the province of the jury, and a dangerous violation of what is the well settled practice of the courts of this State and of Virginia.

In Grayson’s Case, 6 Gratt. 712, it was decided, that new trials are gran table at the instance of the accused in all criminal cases, and that motions for new trials are governed by the same rules in criminal and in civil cases. And it was also held in this case, that when the evidence is contradio-tory and the verdict is against the weight of the evidence, a new trial may be granted by the court which presides at the trial; but its decision is not the subject of a writ of error or supersedeas, nor examinable by an appellate court. It seems obvious from the statement we have made in this case, that if this be law no new trial can be properly granted by this Coui't in this case on its merits, if no errors were committed by the court below in the trial. And yet, the elaborate petition for a writ of error in this case, occupying more than twenty-five manuscript pages, is based principally on the allegation, that the evidence is contradictory and the verdict against the weight of the evidence.

The evidence in this petition is summarized, with a view of establishing these propositions, and if Grayson’s Case, 6 Gratt. 712, be law, the petition on its face shows, that on this the principal ground relied on, the decision of the circuit courtis not subject to be reviewed by this Court; but is final. In full accord with this decision in this respect, is the ease of Vaiden v. The Commonwealth, 12 Gratt. 717, in which the court of appeals decided that, “A bill of exceptions in a criminal case upon the refusal of the court to grant a new trial, on the ground that the verdict is contrary to the evidence, is to be framed in the same way as the bill of exceptions in civil cases to the like refusal is framed. And if the evidence is certified instead of the facts proved, the appellate court will only look at the evidence introduced by the commonwealth.”

Now after reviewing the evidence of the commonwealth the petition for a writ of error in this case says, “If the evidence of these witnesses was true, and the killing of McCoy took place as sworn to by them, it was a clear and unmitigated case of willful, malicious, deliberate and premeditated murder as to all concerned in it. It was committed according to this evidence without cause, without provication, without necessity, without any attempt to arrest McCoy for shooting young Moses Hunt, and in a most reckless, savage and unheard of manner.” And as the commonwealth’s witnesses prove, that the prisoner aided directly and personally in this savage murder, it must according to the case of Vaiden v. The Commonwealth, 12 Gratt. 717, follow, that had the jury found a verdict against the prisoner of murder in the first degree, and it had been approved by the circuit court, this Court would not have awarded a new trial, though as in the petition it is insisted that, the defendant’s evidence satisfied this Court that the commonwealth’s evidence was false and utterly misrepresented the ease; for this Court “will only look in such a case, at the evidence introduced by the commonwealth.” We cannot in coming to a conclusion, even look at this evidence of the defendant.

In accord with their decisions, this Court held in Seibright v. The State, 2 W. Va. p. 591, that, “Even if the verdict of the jury, in the opinion of the Appellate Court, has been against the weight of evidence, and the court below has refused a new trial, it would be improper for the Appellate Court to interfere with its decision.” These decisions are obviously based on the universally recognized principle in this State, that the jury are the judges of the facts and if upon the facts they have found the defendant guilty, aiid this finding is approved by the court which presided at the trial, the Appellate Court which labors under the great disadvantage ofuot hearing and seeing the witnesses testify will never, on a certificate of the evidence, disturb such verdict and judgment, merely because the evidence of the prisoner contradicted that of the commonwealth, if that of the commonwealth justified the verdict. For this Court must presume, that the jury before whom the case was tried, and, the judge who presided at the trial and heard the evidence, properly regarded the evidence of the commonwealth as more trustworthy than that of the prisoner. We cannot set up our judgment as to the credibility of witnesses, against the judgment of the jury and the court below, for their opportunity of reaching a just conclusion as to the reliability of witnesses is far superior to ours. In such a case, the judgment of the court below can only be reversed, for errors of law committed by the court below, in the progress of the ease.

It only remains then to enquire whether any such errors were committed. And first, did the court below commit any errors in refusing the prisoner’s instructions or any of them, or in granting the instructions it did in lieu of instructions number three, five and eight as the record says, but wliioil was intended in lieu of numbers three, eight and nine? The third instruction asked by the prisoner, was in effect, that if the jury believed that certain of the commonwealth’s witnesses had willfully sworn falsely about any material fact, they were to disregard his evidence altogether as to every other material fact, unless he was in his statement about such other material fact corroborated by other credible evidence1 in the case. In determining whether this instruction should have been granted, it is necessary for ns to have a dear conception of the respective duties and obligations of the court and jury, in the trial of such a case.

In England, as well as in some of the States of this Union, much more latitude is given the judge in such a case, than is given them in Virginia or in this State. In some of the States the rule seems to be, that a judge has a right to express his opinion to the jury on the weight of evidence, and to comment thereon as much as he deems necessary for the course of justice; and an erroneous opinion on matters of fact is no ground for a new trial, unless he goes to the extent of inducing the jury to believe, that ho has withdrawn this matter from their consideration. See Commonwealth v. Child, 10 Pick. 252 and People v. Rathbun, 21 Wend. 509; Johnston v. Commonwealthth, 85 Pa. St. 54. Tn this last case it was held, that these words, “I cannot for my part see how the jury can hesitate a moment to convict the prisoner on the third count,” were not on the facts, too strong an instruction. A far different rule has always prevailed in Virginia and in West Virginia. Our authorities arc reviewed in the case of State v. Hurst, 11 W. Va. p. 75. It is there said, “In Virginia the courts have always guarded with jealous care the province of the jury.” Thus as far back as Ross v. Gill, and wife, 1 Wash. 88, President Pendleton said, “If the question depends upon the weight of testimony, the jury, and not the court, are exclusively and uncontrollably the judge * * * and Judge Moncure in McDowell Ex’rx v. Crawford, 11 Gratt. 405, as a result of the conclusion of a review of the cases this language is used : ‘They evince a jealous care to watch over and protect the legitimate powers of the jury. ' They show, that the court must be very careful not to overstep the line which separates law from fact. They estab-lisli the doctrine, that when the evidence is parol, any opinion as to the weight, effect or mffeieneg of the evidence submitted to the jury, any assumption of a fact as found, or even an intimation that written evidence states matters, which it does not state, will he an invasiou of the province of the jury.’ * * * If the province of a jury should be thus guarded with jealous care in a civil case, much more and for stronger reasons, should it be watched, guarded and protected in a criminal ease.”

In that case, upon it being reported to the court by one ot the jurors the others being present in court, that he thought the jury could not agree, the judge said to him in the presence, of the jury, “I see no reason why the jury cannot agree upon a verdict in this cause,” and directed the jury to return. The jury found the prisoner guilty, and this Court deemed this a sufficient reason to set aside the judgment and verdict and award a new trial. This case shows the marked difference between-this Court and the court of appeals in Virginia on the one hand, and some of the appellate courts of some of the other States in regard to the care, which is exercised to guard the province of the jury from being interfered with by the court.

In the cash of the State v. Betsal, 11 W. Va. p. 704, it was decided by this Court, that “a conviction may he had on the uncorroborated testimony of an accomplice, and in such case, if the judge who presided at the trial is satisfied with the verdict and refuses to set it aside, the Appellate Court will not reverse the judgment and set aside the verdict on the ground, that it rested solely oil the uncorroborated testimony of an accomplice.” This conclusion is based on the fact, that the jury are the sole judges of the credibility of all admissible testimony; and in this State the court would err in advising the jury not to convict on the uncorroborated evidence of an accomplice, though this is the common practice in England and in some of the States. But it is utterly opposed to the practice in this State or in Virginia. On page 740-741, 11 W. Va. R., this Court says, “Our courts are- somewhat peculiar in this respect; but the law has been so held in Virginia from the earliest history of her jurisprudence; and we think it constitutes one of the brightest ornaments thereof.” And on page 743 this Court says, “When the jury has found the defendant guilty in a criminal case, and a motion to set aside a verdict and grant a new trial on the ground, that the evidence is insufficient to sustain the verdict, the appellate court will not set aside the verdict and grant a new trial, unless it is irresistibly clear that the conviction was wrong.”

Upon these authorities it seems to be clear, that the circuit court would have erred-in instructing the jury that they 'were to disregard any material fact sworn to by any competent witness, whether corroborated or not, because the jury believed that the witness had sworn falsely to any other material fact. It was the exclusive province of the jury to weigh the evidence of every witness, and to give to it whatever weight they deemed it entitled; and the court properly in this case, declined by this and other instructions asked, to interfere by the expression of any opinion or views on the weight of the evidence, or as to the manner in which it was to be weighed.

The third instruction asked by the prisoner was properly refused. The instruction given by the court in lieu of instructions three, five and eight meaning the third, eighth and ninth was, “that the jury might disregard entirely the testimony of a witness, who had knowingly and willfully testified falsely as to any material fact; or they might give such weight to his evidence on other points as they might think it entitled to, and that the jury were the exclusive judges of the testimony. This instruction is unobjectionable, and it was very properly substituted for the prisoner’s instructions number three, eight and nine, which were well calculated to mislead the jury; and were encroachments on their province. Ought instruction number five for which, it was by mistake said to be substituted, to have been given? This instruction it seems to me ought not to have been given. I apprehend, that it does not even as an abstract question of law propound the law correctly, but be this as it may, it undertakes to instruct the jury under what circumstances private persons have a right to arrest suspected felons. Now there was not a particle of evidence in this case to prove, that McCoy' was shot by the prisoner and others while they were attempting to arrest him, or that they íuade any' sort of an attempt to arrest Mm; and therefore any instruction with reference to the right of the prisoner or others to arrest him, was irrelevant and calculated to mislead the jury and was properly refused on this account.

The sixth instruction was also properly rejected for the reason, that it was irrelevant to the case and calculated to mislead the jury, as well as unsound law. The prisoner was not charged, nor did the State seek to hold him responsible in any manner, for the murder of McCoy, because he had previously conspired with others to murder him. Both the charge and the proof on the part of the State was, that the prisoner personally murdered McCoy, and it was therefor immaterial and foreign to the case for the jury to determine, whether the prisoner had or had not previously conspired with others to murder him; and the court properly declined to say, whether the evidence was or was not sufficient in law to authorize them to presume or find, that the prisoner had entered into such a conspiracy. Had the instruction asked been relevant, it ought on its merits to have been refused.

From the views we have expressed it follows, that all that was proper in instructions number eight and number nine was given in a much clearer manner by the court in the instruction it did give. Instructions numbers ten, eleven, twelve and fourteen asked by the prisoner, are all properly refused by the court. For it is obvious from the statement of the case we have made, that they were entirely irrelevant to the case, there being in the ease no evidence tending in any degree to establish any'of the supposed cases on which their several instructions were based. They were mere abstract questions of law, and whether they correctly propounded the abstract law or not, as they were entirely irrelevant to the case, they were properly rejected. The granting of any of them, if it did not mislead the jury, could only have distracted their attention from the real case before them, and the court therefore properly rejected each of them.

The truth is as the statement of the case shows, that there were really no questions of law involved in the trial, but simply questions of fact, not even conclusions of facts to be drawn from other facts, but only whether the the facts clearly proven by the witnesses of the State were really facts, or mere false statements. This depended on the credibility of the witnesses of the State. For if wliat tliey said was true, what was testified to by the witnesses for the prisoner was necessarily false. It was a pure question of fact depending entirely on the credibility of witnesses, and of course this Court in such a case could not reverse the- verdict of a jury approved by the court below. There was not a particle of evidence tending to show, that McCoy Avas shot by persons avIio were attempting to arrest him for a supposed felony. And all the instructions which are based on such supposed cases, were entirely irrelevant and properly refused.

It only now remains to determine, Avhether the court below erred in permitting testimony to go before the jury against the prisoner’s protest, Avhieli was illegal testimony. While an exception of this sort aaois taken, it Avas not assigned as an ei’ror in the petition for a writ of error by the prisoner, nor has it in argument been insisted on before this Court. The dying declarations of McCoy were properly admitted as it was proven, that Avhen made he expected quickly' to die. One question Avas objected to as leading, but it seems to me it was not liable to the objection and it was properly’ permitted to be answered. The objection to the proof going to the jury, that John Thompson hollowed to his brother and friends from the hill be/tween their lunises, to get their horses and come over, that McCoy had taken his horse and he would take him or ride through hell, as well as the statement made by Mrs Hunt, that one of the party’ going over to Patterson's in search of McCoy called at his house and got a gun and loaded it, while others Avere hunting him up, was properly overruled by the court, they being evidently parts of the. res yesttte proper to go to the jury. I conclude therefore, that there Avas no error in the judgement of the circuit court of July 1, 1881, and that it must be approved and the State recover of the defendant in error its costs in this Court- expended and thirty dollars damages.

The Other Judges Concurred.

Judgment Affirmed.