Counts v. Commonwealth

Sims, J., after making the foregoing statement, delivered the following opinion of the court: The questions presented by the assignments of error-will, so far as necessary, be passed upon in their order as-stated below. The question upon which we feel constrained to reverse the case is as follows: 1. Did the court err in giving the verbal instruction, to the jury set forth above concerning the standard by which they should be guided in endeavoring to agree on a verdict? The question must be answered in the affirmative. It is elementary that the meeting and concurrence of the several minds of all of the jurors is essential to a valid verdict. It is true, as stated in the opinion, of this court delivered by Judge Burks in the Sims Case, 134 Va. 736, 115 S. E. 382: “* * that the jury room is no place for pride of opinion and obstinacy, * * that it is the duty of jurors to discuss the evidence in a spirit of fairness and candor with each other and with open minds to give careful consideration to the views of their fellows, and if it can be done, without a sacrifice of conscientious convictions, agree up.on a verdict.” But this means that the views of a minority, as well as the views of the majority of the jurors, should be given careful consideration by their fellows. The majority view should not.prevail merely because it has a majority in support of it, as the jury [749] were told, in substance, by the instruction in question. It should not prevail unless each and all of the jurors are in fact convinced that such view is supported by the evidence which has been introduced before them, and by the law. The verdict should have the assent of all of the jurors because it is considered by them to be based on the law and the evidence; not merely because a majority of the jurors so consider it. This is the standard, and the sole standard, by which the parties affected have the right to have verdicts found. Any other standard must necessarily result in chance verdicts which can but tend to bring jury trial into discredit. As said in Goodsell v. Seeley, 46 Mich. 623, 10 N. W. 44, 41 Am. Rep. 183, “The law contemplates that they (the jury) shall, by their decisions, harmonize their views if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement. The sentiment or notion which permits this tends to bring jury trial into discredit and to convert it into a lottery. It was no doubt desirable to the public and to the parties that the jurors should agree if they could do so without sacrificing what any one of them believed were the just rights of the parties; but not otherwise.” As said in Richardson v. Coleman, 131 Ind. 210, 29 N. E. 909, 31 Am. St. Rep. 429: “The law * * expects every juror to exercise his individual judgment, and that when a verdict is agreed to it will be the verdict of each individual juror. In arriving at a verdict, a juror should not indulge in any undue pride of personal opinion, and he should not be unreasonable or obstinate, and he should give due consideration to the views and opinions of other jurors, and listen to their arguments with a willingness to be convinced, and to yield to their views if induced to believe they are cor [750] reet; but the law does not expect, nor does it tolerate, the agreement by a juror upon a verdict unless he is convinced that it is right; in other words, unless it is his verdict—a verdict which his conscience approves, and he, under oath, after a full consideration, believes to be right.” 2. The other questions raised by the assignments of error concern the action of the trial court in certain rulings in the admission of certain testimony; in giving certain instructions as asked for by the Commonwealth; and, in modifying instruction No. 1, asked for by the accused, by inserting the words “at the store door” after the word “altercation” in the tenth line of the instruction as offered as it appears in the printed record— which must be ruled upon so far as the-same questions seem likely to arise on a new trial. As none of these assignments present any novel question, we deem it sufficient to say that we find no error in the action of the court in the particulars mentioned in the preceding paragraph; except that we think that the insertion of the words “at the store door” aforesaid should have been made after the word “deceased,” in the eighth line of the aforesaid instruction No. 1, instead of being inserted where it was, so as to 'make the meaning less unmistakable; and except that the ruling of the court excluding testimony as to declarations of the deceased to the effect that the deceased had in fact caught the accused robbing the store may not have been as clearly expressed as might have been. Hence, if instruction No. 1 is again offered on a new trial, it should have the modification mentioned inserted at the place which we think preferable, as above stated; and, if the question again arises, the court should not admit testimony as to declarations of the deceased to the effect that he had in fact caught the ac [751] cused robbing the store. However, if again offered on a new trial, testimony to the effect that the deceased prior to the day of the shooting made declarations charging the accused with having stolen shoes from the store will be admissible because tending to show the animus of the deceased, and who brought on the difficulty, as correctly ruled on the former trial. We will add that we do.not regard instruction No. 8, given at the request of the Commonwealth, as a model instruction; but, as applicable to the theory of the Commonwealth based on certain evidence introduced on the former trial, it was substantially correct. 3. As the evidence was such as that, to say the least of it in favor of the accused, it left room for honest difference of opinion on the part of the jurors based on the consideration of the law and the evidence, we think that the giving of the verbal instruction above mentioned was harmful error; and we therefore feel constrained to set aside the verdict, annul the judgment under review, and grant a new trial, which will be accordingly done. Reversed and new trial granted.