Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1895-06-20
An INTERESTING DECISION
In the Supreme Court Of Appeals, Yes
terday,
In the Case of State Peter Cobbs,
Convicted Of Murder in Mercer
County The Lower Court Re-
versed-Other Causes.

There was very interesting and inn
portant decision by the Supreme Court
Of Appeals. yesterday, in the case Of
the State v. Peter Cobbs, from Mercer
county.
Cobbs was tried on an indictment
for murder in the first degree and con-
victed. When the simple verdict of
guilty was announced, Mr.. Hale, Cobbs'
lawyer. asked the Court to instruct the
jury that it could find such a verdict
and fix the penalty at Imprisonment,
which was refused. On this ground
the Court reverses the decision and re-
mands the case for new trial. The
decision is very lengthy, but the sylla-
bus, giving its gist, is in substance as
follows:
1. 1t is not error for Court to omit
to instruct a jury that it may punish
murder in the first degree with either
death or confinement in the psL!-en-
tiary, unless asked TO do so.
2. 1T is error to refuse TO do so when
asked, though not asked until the jury
announced It's verdict, but before its
. discharge.
3. The law does not fix and time for
instructions. The Court may fix it by
rule.
4. A Court may for good reason re
turn the jury TO its room to further con-
slider and amend or alter its verdict at
., fgf ie
by the Court and the jury discharged o.
s. A Court. though asked, is not
bound to instruct generally; instruc-
lions as to specific law points ought to
be asked A Court may without re-
quest instruct as 10 matters Of law, but
is not bound to do so, unless asked. If
I asked 10 give such proper specific in
sTUctions &c must do So
g. The Court suggests privately TO
counsel for the accused, when the in
structions are under consideration, that
it would be we'll TO have the jury in
structed that it may fix the penalty for
murder i'm the first degree at imprisOn-
ment. to which counsel responds that
/ he prefers to take chances. This does
not estop the prisoner from subsequent
| ~ asking this instruction at any time
before the jury is discharged.
Z. Afidavits of jurors that they were
/ ignorant of the fact that they could
punish murder in the first degree with
death or Imprisonment cannot be read
to impeach a verdict.
/ s. AS a general rule afiidavits of jul
rors cannot be read to impeach their
| verdict.
The business transacted by the Court
| yesterday was as follows:
State VS.. Boatwright McClung, from
/ Creenbrier county; petition for writ OF
/ error refused.
Wallace VS.. Payne and others, from
, Mcdowell county; petition for appeal
and supersedeas refused.
= Wards admir- VS.. Mouse and others,
! from Randolph county; petition for
writ of error and supercedeas refused.
Brown VS.. SQuires. from Tucker coun-
ty: appeal allowed; bond $500.
Wilfong VS. Johnson. from Tucker
county; motion to dismiss was over
ruled: writ of certiorari was awarded
and cause submitted, with leave to
appellee to file brief.
Douglass & Co. VS.. Douglass, from
| Barbour county; submitted.
Stout and others VS.. Philippi NJ. & NJ.
Co.. from Barbour county; submitted.
Leave was given for the withdrawal
of transcript of record in Richmond VS..
Dean.
State VS.. Peter Cobbs, from Mercer
county: opinion by Judge Brannon
Judgment Of Circuit Court reversed
and cause remanded for new trial.
Adjourned until 10 a. m. to-day.