I dissent from the decision of the majority in this case. I do so for the reason that in my opinion the defendant has had a fair trial. He has received the judgment of his peers on the charges against him, and has assigned no error which, in my judgment, prejudiced his defense. The trial may not have been a perfect one — few are —, but a defendant charged with a criminal offense may not insist on a perfect trial.
There may be some confusion respecting the application of the presumption of prejudice where error has been committed in the trial of a criminal case, and the rule that to justify the reversal of a judgment entered on a jury verdict, it must appear that error committed was material and prejudicial to the defendant. In 1 Michie's Jur., 724, it is stated: "Error will be presumed prejudicial unless it plainly appears that it could not have affected the result. A plaintiff in error must always show, not only error in the rulings of the trial court, but also error of a substantial nature. When once he has pointed out an error of a substantial character, he is entitled to have it corrected if it appears from the record that there is reasonable probability that it did him any harm. There is no presumption that error is harmless." On the other rule it is stated in the same volume, at page 717: "It is established by a multitude of cases where it clearly appears affirmatively that an error of the lower court could not affect the merits of the case, nor in any way be prejudicial to the party appealing, the appellate court will not reverse the judgment on the ground of such error. This applies to criminal as well as to civil cases. But in a criminal prosecution the doctrine of harmless error obtains only when it clearly appears that accused has had a fair trial according to law and the proof is conclusive of his guilt. If either of these elements is lacking, then the accused has not been accorded the *Page 700 rights guaranteed him under the provisions of the statute and organic law."
That the rule last stated applies to criminal cases, is attested by the decisions of this Court in the following cases:State v. Lane, 44 W. Va. 730, 29 S.E. 1020; State v. Rush,108 W. Va. 254, 150 S.E. 740; State v. Corey, 114 W. Va. 118,171 S.E. 114; State v. Smith, 119 W. Va. 347, 193 S.E. 573; Statev. Taylor, 130 W. Va. 74, 42 S.E.2d 549. In State v.Rogers, 80 W. Va. 680, 93 S.E. 757, it was held: "To obtain reversal of a judgment of conviction in a criminal prosecution, the accused must show that actual prejudice to him resulted from the proceedings in the trial court."
I am not in accord with the view which, in my judgment, is too widely prevalent, and of which the majority opinion is an example, that a person charged with crime is entitled to be protected by this Court against every error which often, through inadvertence, may creep into the trial, but which could in no reasonable view be considered as having prejudiced the accused before the jury. To use such harmless errors as an excuse for a new trial in a case where, as here, the evidence is held by the majority opinion to have fully justified the verdict, seems to me unwarranted. I would at all times give to a defendant in a criminal case the benefit of the constitutional and statutory guarantees designed for his protection, to the end that every element of a fair trial be assured to him; but I do not believe that minor and nonprejudicial errors committed in such a trial should be permitted to nullify a jury verdict returned in a fair trial. Perhaps it will be contended that courts do not intend to reverse judgments in criminal cases, where no prejudicial error has been committed, and I am willing to admit that courts often pay lip service to the proposition that harmless error is not a ground for reversal; but as a factual matter, on the general principle that error committed in the trial of such a case is presumed to be prejudicial, judgments are often, — too often —, reversed *Page 701 and verdicts set aside for reasons which have no relation to the realities of the case; and this occurs in cases where the alleged errors could by no reasonable stretch of the imagination be said to have in any way operated to the prejudice of the accused.
I do not mean to say that the majority opinion in this case is founded on supposed error or errors which may be termed trivial or inconsequential. I think that in some cases similar errors might justify a reversal. I do contend, however, that under the facts of this case, and considering the trial court's charge as a whole, the errors on which the judgment is reversed could not have prejudiced the defendant; and that they do not constitute a sound basis for the reversal of the judgment complained of, and for setting aside the verdict of the jury.
The decision of the majority is based upon four grounds: (1) The failure to incorporate in the trial court's charge the element of intent in the definition of voluntary manslaughter; (2) that no instruction was given covering the admitted fact that defendant was an officer of the law at the time of the homicide involved; (3) that an instruction based upon supposed accidental killing should have been given; and (4) that an instruction was not given to the effect that defendant, as an officer of the law, had a right to arrest Ralph Ware, the victim of the homicide. These points will be considered in the order stated.
The State offered seventeen instructions and the defendant thirty-one, all of which were refused by the court; and, in lieu thereof, the court gave a charge intended to cover the entire case. In that charge the court, in defining the offenses of which the defendant might be convicted stated: "Voluntary manslaughter is when one person unlawfully kills another person without malice, but under sudden excitement and heat of passion * * *." It will be noted that the word "intentionally", or its equivalent, is omitted. Of course, intent is a necessary element of the *Page 702 crime of manslaughter, and the definition of the offense should have included a reference to that element. It is true also that in the case of State v. Foley, 131 W. Va. 326, 47 S.E.2d 40, this Court held that failure to incorporate the element of intent in an instruction on manslaughter was fatal. However, two members of the Court, while believing that the definition should have contained a reference to that element, did not think it was prejudicial error in that case. In my opinion, there is less reason for holding that there was prejudicial error in this case than there was in the Foley case, for the reason that here, in other parts of the charge, there is express reference to intent as an element of the crime. It is true that as to one reference the legal elements of murder are stated, the charge being: "If you believe from the evidence beyond reasonable doubt that the defendant, Roy B. Reppert, intentionally shot and killed the deceased, Ralph Ware, with a dangerous and deadly weapon, fired by his hand, the presumption of the law is that such shooting was prima facie attended with malice entering into murder, and without further showing, is murder of the second degree." But at another point in the charge it stated: "* * * if you further believe that while in the car of the said officers, being taken to jail, the said Ware attacked the accused defendant with force and violence and struck the defendant Reppert with handcuffs which the officer was endeavoring to place upon him; and that, because of said blow or blows by said Ware, the defendant Reppert was rendered unconscious or dazed and incapable of knowing what was being done, and that while so unconscious and incapable of directing his actions shot and fatally wounded the said Ware while endeavoring to subdue him and continue conveying him to jail, and you further believe that said Reppert was neither able to nor did form any intention of shooting said Ware, then said shooting was excusable, and you should find the defendant not guilty." The last quotation should be considered in connection with the defendant's defense in the case. The majority opinion holds that this was not a case of self-defense; and it also holds that *Page 703 there was not sufficient evidence of an accidental killing to base a verdict on that theory, although sufficient to justify an instruction thereon. With these theories of defense eliminated, Reppert's only defense was that at the time he shot Ware he was unconscious; that he has no recollection of pointing the pistol or pulling the trigger; and, of course, had no intention of doing so. This being his defense, and the only defense recognized in the majority opinion, it seems to me that the instruction quoted above covers the case perfectly, and includes everything to which defendant was entitled. The instruction is specific on the point that if there was no intent, there was no guilt, as applied to the particular situation relied upon by defendant in the trial as a defense to the charge against him. This being true, the mere matter of the definition of the crime of manslaughter could not possibly have had anything to do with the jury's verdict. Evidently the jury did not believe the statement made by defendant that he was unconscious at the time he shot Ware, and did not believe that there was basis for the claim of self-defense.
The next point of reversal is that there was nothing in the charge given by the court which advised the jury of the so-called special privileges which an officer of the law may have in executing a criminal process. I think this position is answered by that part of the court's charge which reads as follows:
"The court instructs the jury that the defendant being a police officer had the right to make an arrest of the deceased, Ralph Ware, if at the time and in the presence of the defendant the said Ware was guilty of a breach of the peace in making an affray, contending with angry words to the disturbance of the peace or appearing in a state of gross intoxication in a public place or otherwise disturbing the peace; and, the defendant also had the right, in a proper manner, to convey him to the mayor of the town to be dealt with for his misdemeanors, if any, or, if necessary, in the circumstances to convey him to, and confine him in, the jail. In the performance *Page 704 of these duties the defendant had the right, either alone or with his assistant policeman, to use such force as was reasonably necessary to effect such arrest and transportation; but, he had no right to resort to means and measures reasonably calculated and likely to cause the death of said Ware, in arresting and transporting him as mentioned; and, if he did so resort and as a result thereof, the said Ware met his death at the hand of the defendant, the defendant would not be held guiltless unless upon grounds aside from the fact that he was an officer of the town acting in his official capacity. Of the conduct of the defendant in the circumstances stated, the jury will determine from the evidence, giving to the defendant the benefit of all the evidence in the case, that of the state as well as for the defendant."
In the circumstances of this case, I do not think the trial court would have been justified in going farther on the point of an officer's rights and privileges. Of course, an officer of the law may be and usually is required to be on the offensive, and in the exercise of his duties may take action, which, were a private individual involved, might subject him to punishment under the laws of the land. But I have not understood that the law guarantees to any officer the right to go beyond the necessary steps to execute the process in his hands, or to arrest without process in certain circumstances. He may take the necessary steps to arrest a person charged with crime, or who commits a crime in his presence, and to incarcerate him. Of course, he has the right to protect himself against bodily harm, and does not have to retreat before taking the steps necessary to protect himself, even to the taking of human life. But when an officer armed with a deadly weapon, accompanied by another police officer likewise armed, both of whom had in charge and under arrest a drunken person, and while that drunken person was in an automobile and the two officers were standing outside that automobile, and one of them shoots the drunken prisoner, there does not seem to me to be any solid ground upon which the *Page 705 privilege of an officer can be invoked. When the court instructed the jury that an officer had the right to make an arrest, and as to the other rights detailed in its charge, I think it went as far it was required to go in the circumstances of this case. The State protects its officers in the discharge of their duties, but it does not, and should not, protect them when they abuse their powers, and when, as in this case, as the jury must have believed, the defendant killed his prisoner while that prisoner was in a helpless condition, both because of his drunkenness, and his position in the automobile where he could not protect himself. In these circumstances there would seem to be no reason why the defendant should be permitted to excuse his offense merely because he was an officer of the law.
On the third point, I do not think there was sufficient evidence in this case to justify an instruction on the theory of accidental killing. I agree, of course, that if the killing was accidental, the verdict returned by the jury was not justified. The whole case shows that the real defense was an unintentional, as distinguished from an accidental, killing. It is not necessary to define the difference between the two terms. Defendant says that he was not conscious of any act at the time of the homicide, and we have the right to accept that statement as the basis of his defense, and to pursue that theory to its natural result.
On the point of failure to incorporate in the general charge an instruction that defendant, as an officer of the law, had the right to make the arrest, and that Ware had no right to resist arrest, I need only refer to that part of the court's charge which specifically states that the "defendant being a police officer had the right to make the arrest of the defendant, Ralph Ware, if at the time and in the presence of the defendant the said Ware was guilty of a breach of the peace * * *." The statement of the right of the officer to make an arrest necessarily implies that there can be no right to resist. The majority opinion does not say that the refusal to refer to this matter a second *Page 706 time was prejudicial error; but simply states it was error. The jury was entitled to know that defendant had the right to make this arrest, and in specific terms the court advised it of that right, and it was not necessary to repeat the charge on that point.
I think this is a case where defendant has had a fair trial. The majority opinion admits that the verdict is justified by the evidence. On the sole substantial ground of defense, that of unintentional killing, the jury was plainly instructed that if intent to kill did not exist, there could be no conviction. The right of defendant as a police officer to make the arrest was fully recognized and the jury so charged. There was no evidence of accidental killing, and therefore an instruction on that theory was not required to be given. The only technical error in the case was the failure of the court properly to define manslaughter and that, in my opinion, was effectually cured by another part of the charge given by the court, and the original error made harmless.
For these reasons I would affirm the judgment complained of.