#### Doss v. The Commonwealth.

December, 1844.

1. Criminal Law*—Demurrer to Evidence.† — Neither the Commonwealth nor the accused has a right to demur to the evidence in a criminal prosecution, except by consent of the other party.

2. Same—Same—Refusal to Compel Joinder in—Special Verdict.—The court refusing to compel the attorney for the Commonwealth to join in a demurrer to evidence tendered by the defendant, is not required ex offlcio to direct the jury to find a special verdict.

3. Same—Argument of Counsel‡—Order of.—Though on a criminal trial the accused offers no evidence, yet as the affirmative of the issue is on the Commonwealth, the attorney for the Commonwealth is entitled to open and conclude the argument before the jury.

This was an indictment in the superior court of law and chancery for the county of Mason, against Polly Doss, for adultery and fornication. The defendant pleaded not guilty, and, on the trial, tendered a demurrer to the evidence, and asked the court to compel the attorney for the Commonwealth to join therein, but the *court, being of opinion that there was no authority in the court to compel the attorney for the Commonwealth to join in the demurrer, overruled the motion.

'IJhe defendant not having introduced any evidence on the trial, she by her counsel claimed the right to open and conclude the argument before the jurjr, but the court decided, that it was the right of the attorney for the Commonwealth to open and conclude the argument, and the defendant excepted.

The jury found a verdict for the defendant on the first count, and against her on the second, and thereupon the court gave judgment against her for 10 dollars, the penalty prescribed by law, and the costs of the prosecution, from which judgment she obtained a writ of error to this court.

The facts of the case sufficiently appear from the opinion of the court.

Fisher, for the defendant.

The attorney general, for the commonwealth.

*

Criminal Law—Jury as Judges of the Law.—The principal case is cited in State v. Hurst, 11 W. Va. 78, for the proposition that the jury in a criminal case are judges of the law as well as of the fact. But in Brown v. Com., 86 Va. 472, 10 S. E. Rep. 745, the principal case is cited and disapproved, and the rule laid down that in criminal cases the jury are not judges of the law. This disapproval of the principal case, however, is based on the fact that it was not necessary, in that case, to decide this point.

†

See monographic *note*on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.

‡

See monographic *note*on “Arguments of Counsel” appended to Coleman v. Com., 25 Gratt. 865.

SMITH, J.,

delivered the opinion of the court.

This was an indictment for a misdemeanour. The defendant pleaded not guilty, issue was joined on the plea, and a jury was empaneled to try the issue. Three witnesses were examined before the jury on behalf of the prosecution. The defendant not producing any evidence in her defence, tendered a demurrer to the evidence *227so adduced on behalf of the prosecution. The attorney for the Commonwealth declining to join in the demurrer, the defendant moved the court to compel the attorney for the Commonwealth to join in the demurrer, but the court refused so to do, and overruled the motion. To such refusal, the defendant took a bill of exceptions. This refusal is one of the errors assigned in the petition for a writ of error.

*The defendant also took' another bill of exceptions to the judgment of the court, setting out the following circumstances: The attorney for the Commonwealth, after having read the indictment to the jury, “explained to them the character of the prosecution, and the plea filed by the defendant, and the nature of the evidence, and the facts that the Commonwealth expected to prove before them.” He then proceeded to examine the evidence on behalf of the prosecution, and having closed the examination for the prosecution, the defendant offered no evidence in her dev fence, but claimed the right to open and conclude the argument before the jury. This being resisted by the attorney for, the Commonwealth, the question was referred to the court, and the court decided, that the attorney for the Commonwealth had the right to open and conclude the argument before the jury. This decision of the court constitutes the second error assigned in the petition for a writ of error.

As to the first error assigned, it seems to have been long settled in England, that in a criminal prosecution the crown officer was not bound to join in a demurrer to evidence tendered by the defendant. See 1 Chitty’s Cr. Law, p. 623, (marginal paging). If such a practice ever prevailed in England to any extent, it has become obsolete there, and the practice never existed here. Independent of the force of the English authorities adverse to such a practice, other reasons exist why it ought not to prevail. One of the safeguards thrown abound the citizen charged with crime, is the right to claim the benefit of every doubt arising from the evidence. But on a demurrer to evidence, a different rule prevails, and the evidence is to be taken most strongly against the demurrant. And this is not all. The jury in a criminal cause are the judges of the law and the evidence. A demurrer to the evidence withdraws from the jury a decision upon the facts, and throws the decision upon the court, who are to decide, not as a jury should, by *giving to the accused the benefit of every doubt, but in effect to give to the prosecution the benefit of such doubts. If it be true, that the accused may waive the right of having his cause tried by the jury, and submit the question of his guilt or innocence to the court, the right should be mutual, and the Commonwealth might, in all cases, withdraw the question of guilt or innocence of the accused from the jury. If so, what would become of the right of peremptory challenge, and to a speedy trial by an impartial jury of his vicinage? His right of peremptory challenge is a barren right, and instead of the right to a trial by “an impartial jury of his vicinage,” he must be tried by the court.

This court is of opinion, that it would be subversive of the sacred principle of jury trial in criminal causes to permit either the party accused, or the Commonwealth,, except by mutual consent, to withdraw by a demurrer to evidence, the trial of the cause from the jury to the court; and that, therefore, there was no error in the judgment of the court below, in refusing to order a joinder in the demurrer to evidence in this cause.

It was contended in the argument for the petitioner, that it became the ex officio duty of the court below, upon refusing to compel a joinder in the demurrer to evidence, to have instructed the jury to find the facts specially. It is true, that the jury-may find a special verdict, but they are not bound to do so, and, if instructed by the court to find a special verdict, thejr may disregard the instruction and find a general verdict. It would seem, therefore, to be supererogatory to compel the court to give' an instruction that the jury are not bound to regard. In a proper case, however, the court, in its discretion, will always advise the jury to find a special verdict.

As to the second error assigned, this court is of opinion, that as a general proposition, as well in criminal as in civil causes, the party having the affirmative of *the issue, has the right to open and conclude the argument before the jury; and that the reason of the rule applies most forcibly in criminal causes, arising from the familiar and sacred principle in criminal jurisprudence, that every person accused of crime is presumed to be innocent until his guilt is clearly proved. The burden, therefore, of establishing the guilt of the accused, devolves upon the prosecutor, and of necessity draws to it the right to open and conclude the argument before the jury. This court is, therefore, of opinion, that there was 'no error in the judgment of the court below in deciding that the attorney for the Commonwealth, in this case had the right to open and conclude the argument before the jury.

Judgment affirmed.