delivered the opinion of the Court:
The first four counts in the indictment in this case for obtaining money by false pretenses, it is insisted, should have been quashed on the defendant’s motion : First— because to constitute this crime, itisindispensibly necessary that the prosecutor should have been induced to part with his money by relying on the false representations of the accused; and that this should be alleged in the indictment. The language of the statute creating this offense is: “If a person obtains by any false pretense, or takes from any person with intent to defraud, money or other property, he shall be deemed guilty of the larceny thereof.” Code of W. Va., ch. 145, §23.
If, thereiore, the prosecutor was not induced to part with his money by the false pretenses of the accused, it is, from the very terms of the statute, clear that this crime has not been committed; and it is equally clear that the indictment must allege, that the prosecutor *60was induced by the false .pretenses of the accused to Parfc with his money, as every allegation essential to constitute the crime must be alleged in the indictment. The remaining inquiry is, whether there is such allegation in each of the first four counts of the indictment. After setting out the.false pretenses of the accused, each of these four counts of the indictment alleges, “ hy means of which said false pretenses the said Gilbert L. Hurst did then and there feloniously obtain from said Benjamin R. Coffman this money,” describing it. This is almost identically the language of the statute, “by false pretenses obtain money ;” and it means that “Benjamin R. Coffman was induced by said false pretenses to part with said money,” There is not, however, as the counsel for the defendant insists, any necessity or even propriety in using this phrase in the indictment; on the contrary, the phrase which has been used to convey the same idea is more appropriate, being not only the form in which it is put in the statute which creates the offense, but also the form universally used, and the one prescribed in all the text books. See Archibald’s Crim. PL, ed. 1843, p 293; Chitty’s Crim. Law, ed. 1847, p. 1005; Bishop’s Crim. Proceedings, vol. 2, §162.
The counsel for the defendant, however, refers to several cases as sustaining his position that this essential element of this statutory offense should be alleged in a manner more direct than it is alleged in this indictment, or in any of the forms of indictment given by our best writers on criminal law. The cases referred to, I think, sustain no such position. In all of them it is true there was an allegation that by means of said false pretenses the accused obtained money or property, and the indictment was pronounced bad; but not because of this allegation, for, as I understand these cases, in each of them the indictment would have been held bad, had they contained the most explicit and direct averment, that the prosecutor had been induced to part with his money by relying on the false pretenses of the accused. The difficulty in each of these cases was not in the form *61in which this necessary allegation was made, but it lay in this, that the allegation, in the indictment did not show' that the false pretenses had any connection with the prosecutor’s parting with his money, and if the false pretenses alleged are of such a character that they could not have induced the prosecutor to part with his money-, then the allegation, that he was so induced, would not make such an indictment good. This is all that can, I think, be fairly deduced from any of the cases cited by the defendant’s counsel. They certainly do not give any countenance to the position that in all cases, or even ordinarily, it is necessary in respect to the matter under consideration to do more in an indictment for obtaining money by false pretenses, than to allege that by means of the false pretenses the money was obtained. I do not think that it can be fairly deduced from any of these decisions, that any of the courts who rendered them would have held that more than this was necessary in any case; though the court in some of them uses loose language that might countenance the idea, that more than this might be required to be alleged in some peculiar case. The cases to which I refer, are Rex v. Reed, 7 Car. & P., 849, (32 Eng. C. L., 904); The State v. Orvis, 13 Ind. R., 569; Meshmeir v. The State, 11 Ind., 481; The State v. Green, 7 Wis., 676.
The next reason urged for quashing the four first counts, is that in such an indictment it is absolutely necessary that a scienter should generally be stated, that is, that the defendant knew that his pretenses were false. Though our statute does not, like that of some other States, use the words “ knowingly by ” in defining this crime, yet there must generally be an allegation of the scienter. Regina v. Philpotts, 1 Car. & K., 112, (47 Eng. Com. L.); Regina v. Henderson, Car. & M., 328, (41 Eng. C. L., 183). In the case before us the scien-ter is expressly laid, all four counts alleging that the defendant “ did Icnowingly, designedly, falsely and felon-iously pretend, ” &c. This is the form in which all the text writers in the forms given allege the scienter; and in *62the case above cited and in all others which I have seen "where the indictments have been held bad on this account, there has been a total failure to allege the scien-ter in this or in any .other way. We are referred to the case of The State v. Smith, 8 Blackf. R., p. 491, in which the court says: “That it appears to us that the1 indictment should have contained the allegation that Smith knew at the time he made the pretense, that it was false,” but an examination of the indictment in that case shows, that it simply states, that the defendant unlawfully and falsely pretended, but does not state, that he knowingly and falsely pretended, as the indictment in the case before us does. In the case of the Commonwealth v. Grove Hulburt, 12 Metc., (Mass.) 446, the indictment said : “The defendant designedly and unlawfully did falsely pretend,” omitting the word “knowingly.” The indictment was nevertheless sustained. I think, therefore, there is no good objection to these first four counts, because of a failure to allege the scienter.
The next objection to the indictment is, that the description of the notes stolen or obtained by false pretenses is uncertain and insufficient. The description of them in all five counts is substantially the same; so that if this objection is valid, the whole indictment ought to have been quashed, for in an indictment for obtaining money or property by false pretenses, the money or property, which a person may be charged with having obtained by false pretenses, ought to be described in the indictment with the same particularity, which wmuld be required in an indictment for the larceny thereof; Leftwick’s case, 20 Gratt. 716. The money ob tained or stolen by the defendant is thus described in the first and fifth counts, “divers United States treasury notes, and divers national bank notes, the denomination of which treasury notes and national bank notes were to the jurors unknown, amounting in the whole to the sum of $158.00, and of the value of $158.00, the money and property of the said Benjamin R. Coif-man, And in the other three counts, the description is *63the same, except that after “national bank notes” is added “and divers fractional currency notes of the United' States.” It is objected that there are, and never were, any notes whose legal name is “ United States treasury notes.” There is nothing in this objection, for notes being now a subject of larceny, need not be described with any more accuracy than other chattels, and they are only required to be described with such certainty as will enable the jury to decide whether the thing proved to have been stolen is the very same as that, on which the indictment is founded, and show judicially to the court that it could have been the subject matter of the offense charged, and to enable the defendant to plead- his acquittal or conviction to a subsequent indictment relating to the same thing. The description here “ United States treasury notes,” though it be not the legal name of these notes, is the name by which they are generally known, and fully answers the requiied degree of accuracy. It is the identical name by which those notes are described in an act of the Legislature of Virginia, passed February 26. 1874, Acts of Assembly, p 65, ch. 69. Surely under the rule above laid down as to the accuracy with which the property charged to be stolen should be described, a greater degree of technical accuracy would not be required than that shown by a Legislature in the enactment of criminal laws. The authorities cited below show' that this description of these notes is sufficiently accurate.
But there is a much more serious difficulty as to the manner in which the money obtained by false pretenses, or stolen, is charged in all the'eounts of this indictment, that is the total failure to designate the number of the notes, or to allege as a reason for this failure that their number was unknown to the jury. Is this a fatal defect in this indictment ? It is certainly a general rule that in an indictment for stealing personal chattels, they should be described specifically by the names usually appropriate to them, and the number and value of each particular kind of goods should be stated. 2 Hale, 182. *64And where a number of things are stolen, it is usually 'necessary to state the number with accuracy. See Archibald’s Grim. Pr. & PL ed. 1853, p. 355-18, n. Are notes which circulate as currency an exception to the general rule, that the number of articles alleged to have been stolen, must be specified in the indictment? The general rule has been applied to circulating notes by highly respectable authority. But in my judgment notes circulating as currency constitute, properly, an exception to the general rule that the number of articles stolen should be specified in an indictment, because circulating notes do not come within the reason which is the foundation of the rule, and the holding of them as such exception is sustained by the highest authority, as well as by reason: In an indictment for larceny the courts have never laid down any inflexible rule as to the description of the goods stolen, which rule was to be followed in all cases without regard to the reason of the rule and simply because it had been so determined by the decided cases as' has been done in reference to other averments in indictments. A few examples of which may be given as illustrations. In an indictment for treason the words “ treasonably, and against his allegiance” must be used; so in an indictment for murder the words “murder” and “ of his malice aforethought” are indispensable; and so in an indictment for rape the word “ ravish;” in an indictment for burglary the word “burglariously,” and in an indictment for any felony the word “ feloniously. ” In these cases no other words, nor any paraphrase whatever, would be equivalent to them, and indictments omitting them would be bad. But no such techinical accuracy has ever been required in describing the goods stolen in an indictment for larceny. The general principles governing the description of the goods stolen in such an indictment, as well as the reason for such rule is well expressed by Archer, Judge, in delivering the opinion of the court in the State of Maryland v. Scribner, 2 Gill. & Johns. R., p. 252, he says: “ In all cases of larceny, very particular *65description of the goods taken has never been considered necessary. This doctrine is founded in part, probably, on the fact that the prosecutor is not considered as in the possession of the articles stolen, and is not, therefore, able to give a minute and particular description. But in the case before the court (which was an indictment for being in the possession of unauthorized lottery tickets), the presumption of possession would be the reverse, and there would be no inability or difficulty to give a minute description or set out the instrument.” Notes circulating as currency which have been stolen, not being presumed to be in the possession of the prosecutor, and it being from their nature, difficult, if not impossible, for the prosecutor to give as accurate and a minute description of them as he could give of other articles stolen from him, a less minute and accurate description of them has been permitted than of other articles stolen. For this reason the courts have been more liberal in permit-in g a general description of currency, either coin or circulating notes, than of other articles of stolen property. And the more modern the decision the greater the libei’-ality in this respect. With reference to the number of the articles stolen, there is generally no difficulty in the prosecutors stating the number and it is, therefore, required that the number of the articles stolen should be specified in the indictment, but when the subject of the larceny is currency whether coin or circulating notes, it is generally very difficulty, and in many cases impossible, for the prosecutor to specify the number of pieces or number of notes stolen, and in this respect, applying the reason for permitting a more general description of currency stolen, the more modern decisions have exhibited a strong disposition to modify or dispense with the rule requiring the number of stolen articles to be specified in the indictment when the articles stolen were currency, either coin or circulating notes. Thus according to the weight of modern authorities a statement in the indictment that the number of the coin *66or bank notes stolen were to the grand jurors unknown would dispense with the statement of their number, and render the indictment good. In Haskins v. The People, 16 N. Y., 344, the description of the stolen property, in the indictment, was “bank bills of banks, to the jurors unknown, and of a number and denomination to the jurors unknown, of the value of $600.00; silver coin current money of the State of New York, of a denomination to the jurors unknown, of the value of $50.00; gold coin, current money of the State of New York, of a denomination to the jurors unknown, of the value of $50.00.” The question of the sufficiency of this description was raised by the prisoner’s counsel, objecting to any inquiry into the amount and kind of bills, and of gold and silver coin, at the trial of the case, but his objection was overruled. Chief Justice Denio says “The indictment was sufficient. When the substance of the offense is set out, the jurors may omit a matter of description which, they cannot ascertain. If this were not so there would be a failure of justice. In the case'of the stealing of a considerable body of bank notes or a quantity of coin, it would frequently, and perhaps generally, happen that the owner would not be able to specify the different kind of notes, or the various species of coin, the description of them as bank notes, and as gold or silver coin, together with a statement of the ownership, with an averment that a more particular description cannot be given, sufficiently identifies the offense, to guard the prisoner against the danger of another prosecution for the same crime.” It will be particularly observed, that in describing the gold and silver coin in the indictment in this cáse, there is no averment that the number of these coins were, to the jurors, unknown, but only that the dnomination of them were to the jurors unknown, and in this respect it is precisely like the case we now have under consideration. The court of appeals of New York held that this description of the gold and silver coin was suffi-*67eient, and if we follow this decision, the indictment in tbe case before us must be sustained. In the' case of The Commonwealth v. Stebbins, 8 Gray 492, the supreme court of Massachusetts expressly decided that in an'indictment for larceny neither the number or the denomination of bank notes stolen need be specified, nor need it be stated that their number or denomination were, to the jurors, unknown. The description of the notes in the indictment in that case was, “sundry bank' bills, current within said commonwealth, amounting to the sum of $210.00, of the goods, chattels and money of one Patrick DorseyThe court was unanimous in this decision, Chief Justice Shaw presiding. Before the rendition of this decision the court had frequently intimated this opinion.. See Larned v. Commonwealth, 12 Metc., 245. And it had previously been decided that such a general description was sufficient, if the indictment contained an averment that the grand jury had not the means of describing the bank notes more particularly. See Commonwealth v. Sawtell, 11 Cush., 142, and The Commonwealth v. Duffey, 11 Cush., 145.
In The Commonwealth v. Sawtell the court says: “As to the larceny of silver coin, it has been a long and well settled practice in this commonwealth to charge it as a larceny of ‘ sundry pieces of silver coin, current in this commonwealth, amounting to the sum of-dollars/ without describing the various particular coin/’ I can see no good reason why the number or particular description or denomination of bank notes should be regarded as essential, while the number and denomination of coin should not be. The reason for dispensing with this particularity in the one case is the same as in the other. One has no better knowledge of the number of the bank notes and fractional currency in his possession at any given time than he has of the number and denomination of the gold and silver coin in his possession. The spirit of these decisions has met the approbation of other courts; but I shall content myself with the citation of *68one other only. In the case of The State of Minnesota v. Taunt, 16 Minn., 109, the court held that an indictment for larceny was good, when the description of the property stolen was “ sundry genuine and current treasury notes of different denominations, issued by the treasury department of the United States, and divers and sundry genuine and current bank notes, of different denominations, issued by different and sundry national banks, organized under the laws of the United States, all of which treasury and bank notes amounted to the sum of $250.00, and were of the value of $250.00, and were the property of one Joseph Smythyman; a more particular description of which treasury notes and bank notes, or any, or either of them, is to the said grand jury unknown,77 And Chief Justice Ripley, in an able opinion, indicates clearly that the indictment ought to be held sufficient, though there had not been in it the averment of an inability to give a more, particular description ol the notes stolen. In this opinion he states that “the allegation ‘that a more particular description of the articles stolen is unknown to the grand jury7 is not tra-versable.77
In the case of The Commonwealth v. Sawtell, 11 Cush., 142, the court says: “As to the objection of uncertainty in this indictment, and its effect in depriving the party of the privilege of pleading the same in bar of a second indictment, the objection is rather specious than real. The difficulties that are suggested under the present form of indictment would be likely to occur under the form admitted to be legal and proper. The number may be stated much larger than appears in proof, and yet no substantial variance. When the articles are of one class, or of the same kind, stating the number of articles aids little in identifying the particular offense charged. The second indictment may be for a smaller number, and, therefore, it may be necessary to resort to oral evidence to identify the larceny as the same that has been previously charged, If the previous indictment is general in *69its statement, in sucb case, upon a plea of former conviction or acquittal being pleaded to a subsequent indict-' ment, tbe ease would be open to oral evidence to identify the larceny charged in the former case.” As, therefore, the allegation in the indictment of a specific number of notes stolen, or the allegation that the number of notes stolen are unknown to the jury, seem more formal than substantial I the more readily, for the reasons above given, hold that neither of these allegations are necessary. The counsel for the defendant refers us to Leftwich’s case, 20 Gratt., 716. There is nothing in this case inconsistent with the views above-expressed. The property was, in the indictment in that case, described as “ the sum of ninety dollars in United State currency, of the value of ninety dollars, of the property of said Montague. ” The court properly held this description insufficient as “ United States currency, ” might be gold or silver,- or treasury notes or bank notes. Moncure, President, says: “ The indictment is too vague; it ought to show what kind of United States currency Avas obtained,” but he does not say that it ought further to .shoAv the number of notes stolen. The indictment Ave have under consideration does show the kind of currency Avhich Avas obtained. I am of opinion that the circuit court did-not err in refusing to quash the indictment in this case or any of the counts. It is, therefore, unnecessary to consider, Avhether the verdict of the jury could have been sustained, if any one of the counts in the indictment had been fatally defective, or Avhether a conviction could haA’e been based on the last count alone, if the other four had been fatally defective. These questions have been argued before this Court; but in the view I take of this case they are not fairly presented by the record, and are not therefore considered.
The next question which is presented for our consideration by the record is, did the court err in rejecting the first instruction asked by the defendant’s counsel ? The instruction is set forth at length in the statement of the *70case, which I have prepared, and which is prefixed to this opinion as part of it. The first objection urged to this instruction is, that there was no'evidence tending to prove the facts set forth in it, upon the belief oí which by the jury the instruction is based. The bill of exceptions to the refusal to give this instruction sets forth the testimony in the case and shows distinctly, that there was evidence tending to. prove all the facts, on the belief of which by the jury the instruction is based. The fact that Coffman had assigned the single bill to Amanda G. Hurst, wife of the prisoner, for a valuable consideration, and, as an inducement to get her to accept it, had agreed and promised her, that if the obligor, Watkins, did not promptly pay off the single bill, he (Coffman), would take it up, is the allegation. supposed to be sustained by no evidence. It is true that Coffman denies this statement. But the truth of this statement is asserted by the witness, Mrs. James M. Plant, who was present when the note was transferred by Coffman ; and James M. Plant, who wrote the assignment says, when it was written: “ something was said about Coffman taking up the single bill, if W atkins did not pay it; and that his present opinion was, Coffman said he would pay it if Watkins did not. ” This is certainly ample foundation for asking this instruction. The facts set forth hypothetically in this instruction : “That the unpaid balance of the assigned note was available and valuable, and would be realized by Coffman,” though an undisputed fact, is one which I regard as totally immaterial, and the introduction of which into the instruction only tended to confuse it, and render difficult to comprehend the law point, which this instruction intended to present. The question intended to be presented by it is, that if when the bond of Watkins was transferred by Coffmán, he (Coffman) was under a legal obligation to the transferee of the bond, to take up the bond and pay its amount, then that the difference between the amount he actually paid andjlie amount he was bound to pay, was all that *71was obtained from him by false pretenses, and if this was less than $20.00, the defendant could not be convicted" of felony. If the jury believe from the evidence, in the language of this instruction, “ that Coffman had previously assigned the single bill to Amanda G. Hurst, wife of the prisoner, for a valuable consideration, and, as an inducement to get her to accept it, had agreed and promised her, that if Watkins did not promptly pay off said single bill, he (Coffman) would take it up,” then such agreement and promise is binding on Coff-man, whether due diligence to collect said single bill was or was not used by the transferee. The proposition of law designed to be submitted by this instruction is fairly presented. The truth or falsity of this .proposition involves the question whether a person can be indicted for procuring money by false pretenses, who by false pretenses has induced another to pay him a debt already due. Bishop in his Crim. Law, vol. 2, §442, third ed. states the law to be, that an indictment in such a case will not lie. The oldest decision on this question, which I find is a case decided in 1836, by Coleridge, Judge, the ease of Rex v. Williams, 7 Car. & Payne, p. 354; 32 Eng. C. L. R., p. 540. The prosecutor owed the prisoner’s master a sum of money which' he would not pay; the prisoner, to secure his master the means of paying, himself went to the prosecutor’s wife and falsely pretended that his master had bought of her husband two sacks of malt and had sent him to fetch them away, and she, thereupon gave them to him, and he carried them to his master. Judge Coleridge charged the jury, “ that if they were satisfied that the prisoner did not intend to defraud the proseeutor, but only to put it in his masters power to compel him to pay a just debt, it will be your duty to find him not guilty. It is not sufficient that the prisoner knowingly stated what was false and thereby • obtained the malt. You must be satisfied that the prisoner intended at the time to defraud the prosecutor. ” The case of The Commonwealth v, Thompson, reported *72in the 3d Pa. Law Jour, and commented on in Lewis’ U. S. Grim. Law, 197, is said in the case of The Commonwealth v. Henry, 10 Harris, (22 Pa. St. R., p. 256), to have been a case in which the prisoner by falsely pretending he had a warrant of arrest against the prosecutor procured the payment of an honest debt. It was held that he was not liable to be indicted for procuring money by false pretenses. This case is cited approvingly in the case of The Commonwealth v. Henry, and the court adds: “ A false representation by which a man is cheated into the performance of a duty is not within the statute.” In the case of The People v. Thomas, 3 Hill 169, the court in rendering its decision uses precisely, the same language as was used by the supreme court of Pennsylvania in the case of The Commonwealth v. Henry, though an examination of the case shows that the decision of this principle was not involved in the case before the court. These are the only decisions or dieta to which I have been referred, or which I have found bearing on the subject directly. Other cases have been relied on in which the question discussed was the criminal intent or absence of such intent in common law offenses; but they seem to me to throw but little light upon the subject. The true question involved is, what is the proper construction of the 23d section of chapter 145 of the Code of ' West Virginia. Its language is: “ If a person obtain by any false pretenses from any person, with intent to defraud money, &c., he shall be deemed guilty of larceny.” The words false pretenses used in this statute are very comprehensive, yet the court looking to the purposes of the Legislature have often held that every false representation or statement ought not to be held a false pretense and have put a limited meaning on these broad words which they have attempted to define with such accuracy as the nature of the case would permit. ) In the same spirit, I think, the words “with intent to defraud,” should be interpreted. [It is doubtless immoral for a person by false pretenses to obtain the payment of a just debt. *73The end sought may be just, but such end will not, by a correct code of morals, justify the use of improper' means; but the law does not, in many instances, attempt the enforcement of good morals, and the question is, whether the use of false pretenses to obtain a claim justly due, is within the true meaning of this criminal statute, a fraud. To so construe this statute, would, in my judgment, consign to the penitentiary as thieves many persons who cannot be classed with common thieves, without breaking down all our ideas of distinctions in degrees of immorality. 1 think, therefore, that within the true meaning of this statute, a man cannot be held guilty of procuring money by false pretenses, with intent to defraud, who has merely collected a debt justly due him, though in making the collection he has used false pretenses. J The authorities I have cited, thoush not entitled to much weight in themselves, sustain this view; and I have seen no authority which sustains the contrary view. I think, therefore, the circuit court erred in rejecting the first instruction offered by the defendant; it might very properly have been so modified in its language as to express the idea it intended to convey in a clearer manner. The instruction set forth in the second bill of exceptions, should have been modified by. the court by adding at the end thereof, these words: “But if the jury further believe from the evidence, that said Coffman had previously assigned said obligation to Amanda G. Hurst, wife of the prisoner, for a valuable consideration, and, as an inducement to get her to accept it, had agreed and promised her that if Watkins did not pay her he (Coffman) would take it up ; this would negative the idea of an intent to defraud Coffman, so far as the procuring of $144.39, the amount of said obligation was concerned, and they should find him guilty of taking only $13.61.” The next question is, did the circuit court err in giving the instruction set forth in the third bill of exceptions? The defendant’s counsel insists that though the first part of §23 of ch. *74145 of Code of W. Va. declares that a person obtaining " money by false pretenses shall be deemed guilty of larceny, yet the punishment of this offense is not that p're-scibed by the Code for larceny, but is the punishment .named in the latter part of this section, that is, confinement in the penitentiary for not less than one or more than five years, or, at the discretion of the jury, confinement in the jail not more than one year, and fine not exceeding $500.00; and that the court erred in declaring the punishment of this crime, in any case, as confinement for not less than two, nor more than ten years in the penitentiary. There was clearly no error in this part of tbe instruction. The court of appeals of Virginia considered this question maturely in Dill’s case, 25 Gratt., 965, and decided that the obtaining money under false pretenses, is by this statute made larceny, and that the penalty of the offense is the same as in other cases of larceny. I fully concur in the elaborate opinion of Judge Moncure in that case on this point. Sec pages 99 81-4. The court, however, erred in not responding directly to the inquiry of thejury, by giving them substantially the instruction contained in bill of exceptions number two, with the modification thereof as above indicated. While the instruction contained in the third bill of exceptions, is not positively erroneous, yet given under the circumstances detailed in this exception, it was calculated to mislead the jury.
The prisoner’s fourth bill of exception presents the question, whether it was error for the court to make to-the juror in the presence of the jury the remark complained of. It appears from the bill of exceptions, that after the argument of counsel was concluded the jury retired to consider of their verdict, about 5 o’clock p. M., on the 7th day of the term of the court, and after remaining a short time in their room, returned into court without having agreed upon their verdict. Thereupon they were, adjourned until the next day at 8 o’clock A, M., at which time they were again sent to their room *75to ■ further consider oí their verdict. At the time for the noon recess they were sent for by the court and adjourned to 1:30 o’clock p. m. After their coming into court after dinner, and being called and again about to retire to their room to further consider of their verdict, and after the instruction had been given and refused, as stated in bills' of exceptions numbers one, two and three, one of the said jurors remarked to the court, in the presence and hearing of the counsel for the State, and the accuséd, and in the presence of the accused, and in the presence and hearing of the rest of the jury, that he, the said juryman, thought the jury could riot agree. Whereupon the court responded to the said juror, in the same presence and hearing : “ I see no reason why the jurycanriot agree upon a verdict in this case,” and again directed the jury to retire to their room, and further consider of their verdict.
In Virginia the courts have always guarded with jealous care the province of the jury. In 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. ” In Keel & Roberts v. Hubert, 1 Wash., 203, the court below having instructed the jury that, “ the evidence produced by the plaintiff was good and effectual in law to maintain the issue on his part, ” the court said: “ The dictrict court most certainly did wrong in directing the jury, that the evidence was sufficient to maintain the issue.”
In the case of Gregory v. Baugh, 2 Leigh. 665, the circuit court having in a charge or iristruction to the jury, stated matters as being in a written deposition and instructed the jury that’’ that matter was legal evidence when, in fact, no such matter was in the deposition, it was held, that this was.calculated to mislead the jury, and was error, for which the verdict should be set aside and the judgment reversed. The court, consisting of four judges, were unanimous in this decree. It was argued with great force, that in was impossible that the charge *76could have deceived or mislead the jury. The depositions were before the jury, the cause turned chiefly oh them, they were doubtless the subject of minute examination and discussion at the bar, and it was to be presumed, that they were carried by the jury from the bar into the jury room and read there and considered. “It was said/’ answered Judge Carr, to this argument, that “ the jury would read the affidavit for themselves and not take the court’s version of it. This they might' do as in any other case where the court undertook to' to instruct them on the weight or effect of evidence. They might disregard such an instruction, yet it would be error in the court to give it. ” Judge Green said : “ The instructions were calculated to mislead the jury, more or less, by inducing them to believe, that the court was of opinion that such was the effect of the deposition.” Judge, Cabell concurred with Judge Green. And Judge Brooke said: “ The objection to the instruction is not obviated (as was argued by counsel) by the circumstance that the evidence was in writing and would be seen by the jury, who might correct the mistake of the Judge.” In that case the mistake was, as to a mere matter of fact, and could have been corrected by merely reading the deposition, which it was the duty of the jury to do, and which, therefore, they probably did, and yet because they may have been misled by the statement of the court, the judgment was reversed. In this case the court weighed the evidence and pronounced an opinion upon it, and the errors, if any, could not be so easily corrected. It is the ordinary case of an opinion as to the weight, effect or sufficiency of evidence submitted to a jury, which is a good ground for reversal of a judgment according to all the authorities. Such an opinion is certainly calculated to mislead them, whether it be communicated to them in the form of an instruction, or be merely expressed by the eovjrt in their presence in the progress of the trial. In either case, they are authentically informed of the opinion; and it must have an influence upon their judgments, *77probably as much in the one case as the other, but whether the same, or more, or less, the principle involved is not' affected. ” Moncure, Judge, in McDowell ex’rs v. Crawford, 11 Gratt., 405. In the case just cited Judge Mon-cure, quotes approvingly from 1 Rob. Pr., 338, 344, where the cases are collected, and as the result of a review of the cases the author says: “ 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 establish the doctrine that where the evidence is parol, any opinion as to the weight, effect or sufficiency of the evidence submitted to the jury, any assumption of a fact as proved, or even an intimation that written evidence states matters, which it does not state, will be an invasion of the province of the jury.”
The authorities cited were all in civil cases. There is, and ought to be, a distinction between the trial of civil and criminal cases in many important particulars.
There is a great difference as to the quantity of evidence necessary in the two classes of cases. In a civil case, the plaintiff should prevail, if the weight of evidence preponderates in his favor; but in a criminal case it is necessary that the evidence shall be sufficient to remove every reasonable doubt of the prisoner’s guilt. In civil cases the losing party may appeal, or obtain a writ of error; but in a criminal prosecution, the verdict of not guilty is final and irrevocable, and a judgment in favor of the accused must be rendered thereon. In a civil case, it is in the power of the parties by a demurrer to the evidence, to take from the jury the whole evidence, and submit the case to the court; but in a criminal case, the state cannot demur to the evidence and compel the defendant to join therein, the prisoner has the right to have the jury pass upon the evidence, and that right cannot be taken from him. In a civil case, the jury must recieve the law from the court if it is given; in a criminal case, the jury are judges of the *78law as well as of the fact. Doss’s case, 1 Gratt. 559. Irl "a civil case, if there seems to be no prospect of the jury agreeing, the Judge may discharge thejury, even without the consent of the parties; but in a criminal case, the jury cannot be discharged without the consent of the prisoner, merely because the court is of opinion that the jury will not be able to agree as long as the court is in session and if it be discharged it has been held, the prisoner is entitled to his discharge. Williams’s case, 2 Gratt. 568. If the province of the jury should be guarded with jealous care in a civil case, much more, and for stronger reasons, should it be watched, guarded and protected in a criminal case. If the province of thejury in a criminal case may be allowed to be invaded, the liberty and lives of the citizens would not be safe. In times of peril, when commotions in the State exist, untrammeled jury trials are the greatest safeguard of the citizen. If in a civil case, it is error for which the verdict should be set aside and the judgment reversed, for the court to make a remark in the presence of the jury calculated to mislead them, or calculated to cause them to give more or less weight to any testimony before them, for much stronger reason, would it be error to make the same remark in the trial of a criminal case. Was the remark made by the Judge in this case calculated to mislead the jury, or to indicate the opinion of the Judge in such a way as to have the probable effect of influencing the jury in their verdict ? The jury had been out for some time considering their verdict, and some time before the verdict was rendered, came into court, and asked the court for an instruction which clearly indicated that they were inclined to find the prisoner guilty, if not of the felony, at least of a misdemeanor. The court had before instructed them, that “they must regard the prisoner innocent until the contrary is proven beyond a reasonable doubt.” It is probable that some of the jury had such doubt, and when the court, to whom the jurors properly look with confidence, told them he saw no reason why *79they could not agree in the case, it would not be strange if that remark would have more potency in solving their doubts than anything else in the case. They might well say, that “if the court saw no reason why they should not agree, why should they have any such reason ?” We think the remark was, under the circumstances, well calculated to influence the jury, and indicate to them, that in the opinion of the court, the case was free from doubt; and well calculated to remove any doubt that might be in the minds of any of the jury; and should not have been made ; and was an error of which the prisoner might well complain.
For the reasons above stated the circuit court did not err in refusing to arrest the judgment; but a new trial should have been awarded the defendant on his motion.
• Wherefore, for the error of the said circuit court in overruling the motion of the accused for a new trial, and for the other errors specified in this opinion, it seemeth to this Court, that the judgment rendered by said circuit court in this case is erroneous. Therefore it is considered, that the same be reversed and annulled, and it is ordered, that the verdict rendered by the jury be set aside, and that the cause be remanded to the said circuit court of Harrison county with direction to proceed in the manner prescribed by law to cause another jury, duly qualified, to come and to say whether the said Gilbert L. Hurst, be guilty of the felony wherewith he stands accused, in the said indictment mentioned, or not guilty, and further proceed according to the principles settled in the foregoing opinion, and as the law requires.
Judgment Reversed, verdict set aside and case remanded