State v. Bragg

87 S.E.2d 689, 140 W. Va. 585, 1955 W. Va. LEXIS 8

• Court: West Virginia Supreme Court
• Decided: March 8, 1955
• Docket: No. 10701
• Status: Published

Opinions

Riley, Judge:

Malcolm Cameron Bragg was indicted for murder at the January, 1954, term of the Intermediate Court of Kanawha County, and convicted of murder of the first degree without recommendation for mercy. Upon writ of error to the Circuit Court of Kanawha County, after consideration of the petition, the transcript of the evidence, and the bills of exceptions, that court affirmed the judgment of the Intermediate Court of Kanawha County. To the judgment of the Circuit Court of Kanawha County, affirming the judgment of conviction had in the intermediate court, the defendant prosecutes this writ of error.

The defendant was indicted in the Intermediate Court of Kanawha County, at the January, 1954, term thereof. On the 1st day of M|arch, 1954, the trial having come on to be heard, the defendant moved the court that the case be continued until the next term, which motion was overruled by the court. The defendant then moved that the venue of the trial upon the indictment be changed to some other county, in West Virginia, which motion was likewise overruled. To these rulings the defendant objected and excepted, and the defendant then entered his plea of not guilty.

On March 1, 1954, a jury was impaneled and qualified, and the case having been heard, the jury, on March 3, 1954, rendered the following verdict: “We, the jury, find the defendant guilty of murder in the first degree.” The defendant, by counsel, having moved the court to set aside the verdict of the jury and grant defendant a new trial, which motion the court denied, the defendant then objected and excepted to the court’s ruling. Thereupon the court immediately pronounced judgment that the defendant be punished by death.

On March 8, 1954, the defendant, Malcolm Cameron Bragg, filed in the intermediate court a pauper’s affidavit, for the purpose of securing from the court reporter a transcript of the evidence and proceedings of the trial had in the intermediate court, without charge to the defendant, for use in making defendant’s application for a writ of error to the circuit court, which affidavit assigned thirteen grounds upon which counsel for defendant stated a writ of error to the circuit court would be sought, among which are the two following grounds:

“1. That the Court erred in permitting the prosecuting attorney to inquire of the defendant, Malcolm Cameron Bragg, whether or not the said Malcolm Cameron Bragg had a license to carry the death weapon, a pistol, and required the said Bragg to answer said question over the objections of the defendant’s counsel, and which said answer by the defendant was that he did not have a license to carry said pistol;

“2. The Court erred in refusing the defendant’s motion for a new trial when the prosecuting attorney inquired of Malcolm Cameron Bragg whether or not he had a license to carry the pistol and Bragg answered that he did not have a license to carry a pistol, when the said question by the prosecuting attorney had been objected to by defendant’s counsel;”.

The defendant, who is twenty-three years old, was born on Paint Creek in Kanawha County, West Virginia, and spent most of his life in that county. At an early age he was committed to the West Virginia Industrial School for Boys at Pruntytown, for a minor infraction of the law. At the age of sixteen he entered the United States Army, and, after serving for about seven months, received an honorable discharge. On September 23, 1947, he reenlisted in the army at the recruiting station in Charleston, and remained in the service until February 17, 1948, when he was given what he terms “an undesirable discharge”, for the reason that he had failed to inform the army authorities that he had been in the army previously. He again reenlisted in the army on November 3, 1948, at the Charleston recruiting station. In 1948, while absent without leave (A. W. O. L.) Bragg was arrested in Hillsville, Virginia, and charged with the crimes of grand larceny and breaking and entering committed in the State of Virginia. After having served four and one-half years of two three-year sentences in the Virginia penitentiary, Bragg went to the City of Logan, and stayed with his parents until the latter part of October, 1953, when he accompanied his family to the State of Ohio, where his father was employed, and where he was employed for a short time.

On November 6, 1953, defendant left the Town of Rose-ville, Ohio, where he was working, and arrived in Charleston about five-thirty on Saturday morning; November 7, 1953. On that morning he visited the Rose City Cafeteria, located on Summers Street in Charleston, in search of employment as a short order cook. Shortly before noon on that day he left Charleston on a bus bound for the City of Logan, where he arrived between one and one-thirty in the afternoon. Immediately upon his arrival there he associated himself with two young women, Dolly Rice and Macie Welch, and accompanied them to a tavern in Logan called the Wheel Cafe, where the three drank a large quantity of beer. According to the defendant the three stayed at the Wheel Cafe, with the exception of an hour or so, until about midnight on November 7, 1953. Bragg then went with Dolly Rice to the West Virginia Hotel, an establishment located in the City of Logan, where they spent the night together.

There is substantial evidence in the record to the effect that the defendant was grossly intoxicated on the night of November 7. The next morning he and the Rice girl arose between eleven and eleven-thirty, and went to a place in or near the City of Logan, known as the Columbia Cafe, where they had breakfast. After breakfast the two returned to the Wheel Cafe where they again began to drink beer and whiskey. While there on the afternoon of November 8, 1953, Sunday afternoon, the decedent, Robert Gullett, with whom the defendant was not previously acquainted, joined the group, and the deceased, the defendant, Dolly Rice and Macie Welch remained at the tavern for some time drinking beer.

While the four persons- were together at the Wheel Cafe on Sunday afternoon mention was made of the fact that the defendant Bragg intended to return to Charleston that night, and the deceased, who operated a taxi-cab for a local taxi-cab company, offered to take defendant to Charleston, after he returned to work at the scheduled time of five o’clock in the afternoon. Evidently Bragg and deceased arrived at an agreement for Gullett to drive defendant to Charleston in the former’s taxi-cab. It appears that the regular fare for taxi-cab service between Logan and Charleston was twenty dollars, of which the employer gives the driver eight dollars commission, leaving the sum of twelve dollars to be paid to the company. However, Bragg testified that Gullett stated he would take defendant to Charleston for thirteen dollars, because, as he testified deceased said, “Because I may want a bottle of beer or a hamburger on the way over and in that way all expenses will be paid and it won’t cost me anything.”

About eight-fifteen on the night of November 8, 1953, Gullett and Bragg, with Gullett driving his employer’s taxi-cab, left Logan for Charleston. As the defendant Bragg was the only eyewitness to the homicide, his narration of the events which lead directly to the fatal shooting must be stated in some detail.

According to Bragg, after leaving the City of Logan, both Gullett and Bragg had several drinks of whiskey, and evidently no trouble arose between them until the taxicab was driven within twenty-five miles of the City of Charleston. There Gullett, so defendant testified, informed Bragg for the first time that his fare would be the regular twenty dollars, instead of the thirteen dollar fare which Bragg testified had been originally agreed upon. At that time and place Gullett drove the taxi-cab over to the side of the road and on a side road to West Virginia Route No. 12, which was near the home of defendant’s witnesses, George Chapman and M]rs. Dooley Smith, in Lincoln County. As a result of the differences between the two occupants of the car, they engaged in a fist fight at the rear of the automobile, while it was parked on the side road. Thereafter the two got back into the car, according to Bragg, when suddenly Gullett struck Bragg across the face. Thereupon Bragg in a fit of passion and anger drew the gun from his pocket and shot Gullett in the head. Becoming frightened, Bragg felt the deceased’s pulse to determine whether he was still alive, and after ascertaining that Gullett was dead, he drove the taxi-cab down the highway toward Charleston, and stopped at a point approximately three miles from the Coal River Bridge in Kanawha County, where he removed Gullett’s body from the taxi-cab and threw it over an embankment. Thereupon, so Bragg testified, he took thirteen dollars from Gullett’s shirt pocket, his billfold and identification cards, and proceeded to drive the taxi-cab to the City of Charleston. Upon arriving in Charleston, Bragg parked the taxi-cab behind the Parkette Recreation Center on the west side of Charleston, where it was later discovered by the Charleston police. He then went to the Dupont Hotel in Charleston, where he registered under the name of “Robert Hights”, but he remained at this hotel only a short time. Later the same night, Bragg registered at the Worthy Hotel, also in Charleston, where he remained until three or four o’clock on the day following the fatal shooting, November 9, 1953, when he boarded a bus and rode to Marmet, a small municipality a short distance east of the city limits of Charleston. There Bragg boarded another bus which took him to the City of Winston-Salem, North Carolina. From Winston-Salem Bragg took another bus for New York City, where, using Gullett’s discharge papers, he reenlisted in the army under the name of the deceased Robert Gullett, and obtained from the army a few days later the reenlistment pay which would have been due to Robert Gullett had he not been killed and had he reenlisted in the army. He remained in the army only a few days, when he left without leave and went to Fort Myers, Florida, where his family then resided, and where he was arrested a few minutes after his arrival.

The defendant Bragg is corroborated by the testimony of his witnesses, George Chapman and Mrs. Dooley Smith. Beyond peradventure this record discloses that the controversy between Bragg and Gullett, which resulted in the fatal shooting, occurred on a side road in Lincoln County within ear shot of Chapman and Mrs. Smith. Chapman testified that he had been living at his home near the side road for about forty-nine years; that on November 8, 1953, between nine and ten o’clock he observed an automobile being driven on the dirt road near his home; that while the automobile was there he heard voices engaged in a heated argument, and after a few minutes, during all of which time the argument continued, he heard the sound of a shot. He further testified that on the following day, or possibly a day later, he discovered a blot of blood on the road, near the tracks which the car had made. Mrs. Dooley Smith, who lived a short distance from the Chapman home, testified that she heard the shot that night about ten o’clock, and had seen blood on the side of the road. This witness, however was not sure about the time as she did not have a clock.

Detective W. W. Fisher of the Detective Bureau of the Charleston Police Department, who, with Detective Silver-man, discovered the abandoned taxi-cab on November 9, 1953, near the Patrick Street bridge, testified that an examination disclosed what appeared to be human blood on the inside of the car, and midway of the seat was an empty .25 caliber cartridge case. On the floor board on the left side of the taxi-cab, the officers found a shell, and on the left side there was a great deal of blood. The officers also found a spent bullet on the floor board of the taxi-cab on the left side near the bottom of the left door, just about where it would meet the frame of the car. Officer W. W. Fisher found a blood-coated jacket in the taxi-cab. On being recalled Fisher testified that he found the blood-coated jacket in the back seat of the taxi-cab.

Apparently both men were sober during the afternoon of November 8, when they left the City of Logan for the City of Charleston. A chemical analysis of Gullett’s blood, made after his death by Sergeant Shanholzer, a member of the West Virginia Department of Public Safety, who, the record discloses, had received a degree in chemistry at West Virginia University, and was thoroughly qualified in the analysis of both human and animal blood, disclosed that Gullett’s blood contained no alcohol.

State’s witness, Lilly Dale Reed, co-owner with her husband, Thurmond Reed, of the Guyan Taxi Company, testified that she saw both Gullett and Bragg during the course of Sunday afternoon, November 8, 1953, and had occasion to observe closely both men, as Gullett drove the cab from the stand on the trip to Charleston, with Bragg seated beside him in the front seat, and that neither man was under the influence of alcohol. In reference to Gullett the witness testified, “I was close enough to him I would have known if he had anything to drink”, and as to Bragg the witness testified categorically that “He was sober”; and “I don’t think he was drinking, and I know he was not drunk because I had seen him several times before.”

Thurmond Reed, the other owner of the taxi company, did not see Bragg on the Sunday afternoon he left Logan, but about four o’clock in the afternoon shortly before Gullett reported for work, witness checked with him the work of the previous week, and he testified that the amount which Gullett paid to him was satisfactory, and that Gul-lett was “perfectly sober as far as I could tell.”

To like effect State’s witness, Walter S. Hinchman, one of Gullett’s fellow-drivers, testified that just about six, seven or eight minutes before Gullett left Logan with Bragg on the trip to Charleston, Gullett sat in the front seat of witness’s taxi-cab “Just sitting and talking”, and this witness testified that Gullett was not drinking. “I was sitting right opposite him, and if he had been drinking I would have smelled it.”

Mike Ghiz, another taxi-cab driver, testified that about four-thirty in the afternoon of November 8, he turned the taxi-cab he was driving over to Gullett, who drove witness home, and he testified that Gullett was sober at that time.

The threshold question is whether the venue of the case was established to lie iii Kanawha County. Beyond peradventure Gullett received the fatal wound in Lincoln County, so venue would not lie in Kanawha County, unless Gullett’s death occurred in that county. Under Code, 61-11-12, the venue for murder lies in the county where the fatal injury is inflicted, or, if death occurs in another county, venue also lies in such other county. Bearing on the question whether Gullett was alive when Bragg threw him over the embankment in Kanawha County, Bragg’s statement to F. B. I. Agent Byers, introduced in evidence, differs sharply from his testimony at the trial. The statement relates that Bragg shot Gullett in the right temple, then jumped out of the taxi-cab and “ran up the road a little ways and I came back to the cab, then I went down to road and jumped over the bank and started to leave there that way, but I went back to the cab, and I went to the drivers side and pushed Gullett out from behind the drivers side, I believe he was alive at this time, because I could feel his muscles move * * The defendant then says in his statement that he drove to Alum Creek, and then drove for about three miles and stopped along side of the road, where he pulled Gullett out of the taxi-cab and threw him over the bank. But upon trial Bragg testified that he could not find that Gullett had any pulse beat when he threw his body over the bank.

Bearing, however, most significantly on the question of venue is the testimony of Dr. W. Putschar, a qualified pathologist of good reputation in his profession, who testified that he performed an autopsy on the body of Gullett on November 14, 1953, and on evidence of microscopic finding this witness testified that Gullett survived the fatal shot several hours, at a minimum of three hours and a maximum of probably six hours. This evidence bearing on the question as to the county in which venue of the case lies is sufficient for jury determination that Gullett, though shot in Lincoln County, died in Kanawha County, giving both counties venue of the case; and, the State having elected to try the defendant in Kanawha County, it should not be dismissed as a matter of law for lack of venue in Kanawha County.

Though the State prosecuted this case on the theory that the defendant shot Gullett in the commission and furtherance of a robbery, defendant’s counsel proceeded on the defense theory that at the time of the homicide Bragg was so grossly intoxicated that he was incapable of entertaining wilful deliberation and meditation, when he fired the fatal shot. On this theory the defendant offered his instructions Nos. 19, 20, 21, and 22, which were refused by the trial court.

However, as the defendant himself was the only eyewitness to the shooting, and he took the witness stand in his own behalf, his cross-examination, bearing on the extent of his intoxication, if any, at the time Gullett was shot, is most significant.

That Bragg was definitely under the influence of alcohol on the Saturday night before he left Logan in Gullett’s taxi-cab, appears clearly from defendant’s examination and cross-examination. On that Saturday afternoon and evening he had drunk, according to his own testimony, about twelve dollars worth of beer, together with some whiskey, so that he had no recollection of loading the gun with which, he admits, he shot and killed Gullett, and not until he had bought the gun, he testified, did he become intoxicated so that, as he testified, “I didn’t know what I was doing at 5:30 or 6:00 o’clock [evidently speaking of Saturday evening].” In this case, however, we are not concerned with Bragg’s condition on the afternoon and evening of Saturday, November 7, 1953. If the extent of Bragg’s intoxication entered into this case as a defense, it is his condition at the time he left Logan in Gullett’s taxi-cab about eight o’clock on Sunday evening, November 8,1953, and during the course of the ride to Charleston. In this regard defendant testified on cross-examination in detail as follows:

“Q. You were not so intoxicated you did not know what you were doing when you started from Logan to Charleston?

“A. No, sir.

“Q. You knew exactly what you were doing?

“A. Yes, sir.

“Q. And you knew exactly what you were doing when you rolled this boy over the bank, didn’t you?

“A. Yes, sir.

“Q. And you knew exactly what you were doing when you went through his shirt pocket and took out what money he had in there?

“A. Yes, sir.

“Q. And you knew exactly what you were doing when you searched his pockets and got his wallet, did you not?

“A. Yes, sir.

“Q. And you knew that he did not have any more money on him when you left him, did you not?

“A. No, sir.

“Q. You went through all his pockets, did you not?

“A. I did not.

“Q. You took the money changer off his belt?

“A. I didn’t take it off his belt.

“Q. Did you see it?

“A- It was laying in the seat.

“Q. You knew exactly what you were doing when you took it and brought it with you?

“A. Yes, sir.

“Q. You knew exactly what you were doing when you hid his pocket book in a hotel room?

“A. Yes, sir.

“Q. And your purpose was to keep somebody from finding it?

“A. Yes, sir.

“Q. And you knew exactly what you were doing when you hid it?

“A. Yes, sir.”

Provided an accused did not intentionally become intoxicated so as to prepare himself for the commission of the crime, intoxication of an accused is a defense to a charge of murder of the first degree, when the degree of intoxication is such as to render the accused incapable of premeditation and deliberation. See State v. Painter, 135 W. Va. 106, pt. 2 syl., 63 S. E. 2d 86; State v. Corey, 114 W. Va. 118, 171 S. E. 114; State v. Lemon, 84 W. Va. 25, 99 S. E. 263. Under the facts portrayed by this record and the uniform holdings of this Court, the trial court properly refused defendant’s instructions Nos. 19, 20, 21 and 22.

As the State prosecuted this case on the theory that the defendant killed Gullett in the commission of a robbery, certain parts of the record bear pertinently on that theory.

State’s witness, Lilly Dale Reed, co-owner of the Guyan Taxi Company, testified that on the afternoon of November 8, 1953, Gullett attempted to cash a check, which he had received as muster-out-pay as a former member of the armed forces, in the amount of one hundred dollars; and that he obtained the money on the check evidently before he went into the Wheel Cafe about four o’clock on Sunday afternoon with the defendant Bragg, Dolly Rice and Macie Welch. State’s witness, Macie Welch, testified that while she, the Rice girl, Bragg and Gullett were sitting in a booth on that Sunday afternoon, Gullett took from his pocket a billfold, and counted five twenty-dollar bills; that Gullett made no effort to conceal the money, but on the contrary laid the money on the table in the booth, while all four were sitting at the table; and that he then picked the money up, put it back into his billfold and put the billfold back in his pocket.

The defendant on the contrary testified that at the time he entered Gullett’s taxi-cab, he did not know how much money Gullett had with him; and that while defendant was in the booth with Gullett, Dolly Rice and Macie Welch, he did not see Gullett exhibit the five twenty-dollar bills.

Because it appears from State’s instruction No. 2, defendant’s instruction No. 7, and the argument of counsel made a part of the record by bill of exceptions No. 2, this case was prosecuted on the theory that the defendant shot and killed Gullett in the commission of a robbery, the question whether the killing was a “wilful, deliberate and premeditated” killing under Code, 61-2-1, does not enter into this case. It is to be noted that the statute, Section 1, throughout the first paragraph, which defines murder of the first degree, is in the alternative. It provides that “Murder by poison, * * * or by any wilful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, * * * robbery * * * is murder of the first degree.” We are, therefore, not at liberty in the appraisement of this record to apply the rule stated in State v. Boggs, 129 W. Va. 603, 42 S. E. 2d 1, to the effect that even the intentional use of a deadly weapon in the commission of a homicide is not necessarily malicious, and hence not murder within Code, 61-2-1, but such use of a deadly weapon is simply an element from which the jury may infer malice. The correct rule, approved in State v. Boggs, supra, is stated in State v. Bowles, 117 W. Va. 217, 221, 185 S. E. 205, 207: “Malice and intent could be inferred by the jury from the defendant’s use of a deadly weapon, under circumstances which they did not believe afforded him excuse, justification or provocation for his conduct.” (Italics supplied). See also State v. Shelton, 116 W. Va. 75, pt. 2 syl., 178 S. E. 633.

The defendant purchased a box of shells and the .25 caliber automatic pistol from Carsons Auto Store, a sporting and fishing equipment, and automobile accessories establishment in Logan, some time in the late afternoon or early evening of November 7, 1953. That defendant did not make the purchase and arm himself with the pistol with the intent at the time of the purchase of using the pistol for the purpose of killing or robbing Gullett clearly appears from this record. State’s witness, Donald P. Jacobson, the store manager, testified that on the evening of November 7, 1953, Bragg came into the Carsons Auto Store, and purchased the pistol for $37.95, and the shells for $2.50, for which he made a down payment of two dollars. But the witness Jacobson testified on cross-examination that three to five weeks before the pistol was purchased, Bragg came into the store and talked with him about buying a .25 caliber pistol, which the store did not then have in stock, and that the witness told Bragg that when he obtained a gun of the kind about which Bragg had inquired, he would notify him. Bragg testified that about five-thirty or six o’clock in the evening of November 7, 1953, he went to the Collins Credit Clothing Company in Logan, and bought his friend, Dolly Rice, a coat, and that on the way back he passed the Carsons Auto Company, and “saw this fellow”, evidently referring to Jacobson, standing in or in front of the store, waving for him to come in. He testified that about two months previously he went to the Carsons store to pay something on an account which his father had with that store, and on that occasion he “asked if there was any particular gun I wanted, and I said I wanted a pearl-handled pistol. He said he would order it for me, and let me knew when it came in. * * * That evening when he waved for me to come in there, I went in * * *. He said, T have got that gun you ordered.’ I looked at the gun and it was a .25 caliber automatic pistol, chrome finish. He asked me if I wanted it, and I told him I didn’t believe so, that I didn’t have the money. * * * I told him I had a couple of dollars,. and he said, ‘Give me that and you can pay the rest later.’ ” Then the witness testified that Jacobson “throwed in a box of shells, .25 caliber, fifty in a box, and I wrapped up the gun and went into the Wheel Cafe”, where he met Dolly Rice and Macie Welch, and gave the former the coat. He sat down in the cafe, “Dollie and I”, drinking beer and whiskey, until he became so intoxicated that he did not know what time he left the cafe.

During the course of defendant’s cross-examination by the Prosecuting Attorney of Kanawha County, the following colloquy took place:

“Q. You knew you had no right to carry this gun without a State license?

“A. That is true.

“Q. You did not have any State license?

“Objection; overruled; exception.

“A. No, sir.

“Mr. Pettry: We move to declare a mistrial. Our ground is that an accused or defendant cannot be questioned if he had a license to carry a gun or not. (Overruled; exception.) ”

Neither this evidence, defendant’s objection thereto, the trial court’s ruling thereon, the court’s ruling on defendant’s motion for a mistrial, nor the exceptions of defendant’s counsel to the trial court’s ruling, was specifically set forth in defendant’s motion that the trial court set aside the verdict of the jury and grant defendant a new trial; nor does the record contain a special bill of exceptions, which shows the evidence, the objection of defendant’s counsel thereto, the ruling of the trial court in admitting the evidence, the trial court’s ruling on defendant’s motion for a mistrial, or the exceptions to the trial court’s rulings, though the evidence, the defendant’s objection thereto, the trial court’s ruling in admitting the evidence, the motion of defendant’s counsel that a mistrial be declared, the trial court’s ruling on the motion, and the exceptions of defendant’s counsel to the trial court’s rulings were included in a general bill of exceptions. On that basis it is asserted by the attorney general that if the questions and answers thereto are objectionable and prejudicial so as to constitute reversible error, such error cannot be considered here, because of the rulings of this Court in Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123; State v. May, 111 W. Va. 118, 160 S. E. 918; and State v. McNemar, 108 W. Va. 237, 151 S. E. 176.

To defendant’s assignment of error that the trial court erred in admitting the evidence objected to and in overruling defendant’s motion for a mistrial, the attorney general counters: (1) That the alleged error in admitting the testimony over objection and in overruling defendant’s motion for a mistrial cannot be considered on this writ of error under the holding of this Court in point 3 of the syllabus of Ritz v. Kingdon, supra, because the alleged error has not been specifically made a ground in support of defendant’s motion to set aside the verdict of the jury and grant defendant a new trial, or incorporated in a special bill of exceptions, showing the evidence objected to, the rulings of the trial court thereon and on defendant’s motion for a mistrial, and the exceptions of defendant’s counsel to the court’s rulings; and (2) if the trial court erred in the particular regard assigned, the error was not prejudicial to the defendant under the holding of this Court in the case of State v. Foley, 128 W. Va. 166, 35 S. E. 2d 854.

The principle enunciated in Ritz v. Kingdon, supra, and kindred cases, however, though jurisdictional, is in the final analysis procedural and technical. In a case such as the one at bar, in which the life of the defendant is at stake, the rule should not be applied by this Court so as to withhold from this Court its duty to see that every defendant in a criminal case has a fair trial.

We are, therefore, persuaded, in the interests of justice to reappraise the holding of this Court in the Ritz case, and to reexamine the pertinent statutes governing the instant question of appellate procedure, and in this connection to consider carefully the record made in the case at bar.

The petition filed in the Circuit Court of Kanawha County, praying for a writ of error and supersedeas to the judgment of conviction entered by the Intermediate Court of Kanawha County, on March 3, 1954, contains the following assignments of error:

“1. In permitting the Prosecuting Attorney to inquire of the defendant, Malcolm Cameron Bragg, whether or not he, the said Malcolm Cameron Bragg, had a license to carry the death weapon, a pistol, and in requiring the said Bragg to answer said question over the objection made by defendant’s counsel and which said answer by the defendant was that he did not have a license to carry the pistol at the time of the fatal shooting.

“2. In refusing the defendant’s motion for a new trial after the Prosecuting Attorney inquired of the defendant, Malcolm Cameron Bragg, whether or not he had a license to carry the pistol at the time of the fatal shooting and after the said Bragg had answered that he did not have a license to carry the pistol and after the question concerning the pistol had been objected to by defendant’s counsel.”

And the petition of the defendant, praying for a writ of error and supersedeas to the judgment of the Circuit Court of Kanawha County, filed in this Court on October 4, 1954, contains, inter alia, the two following assignments of error:

“1. The trial Court erred in permitting the Prosecuting Attorney to inquire of the defendant, Malcolm Cameron Bragg, whether or not he, the said Malcolm Cameron Bragg, had a license to carry the death weapon, a pistol, and in requiring the said Bragg to answer said question over the objection made by defendant’s counsel and which said answer by the defendant was that he did not have a license to carry the pistol at the time of the fatal shooting.

“2. The trial court erred in refusing the defendant’s motion for a new trial after the Prosecuting Attorney inquired of the defendant, Malcolm Cameron Bragg, whether or not he had a license to carry the pistol at the time of the fatal shooting and after the said Bragg had answered that he did not have a license to carry the pistol and after the question concerning the pistol had been objected to by defendant’s counsel.”

The former petition, that is the petition praying for a writ of error and supersedeas to the judgment of the intermediate court, filed in the circuit court, was not contained in the printed record, but was found in the original record. The petition for a writ of error and supersedeas to the judgment of the Circuit Court of Ka-nawha County, filed in this Court, is contained in the original record.

The printed brief filed in this Court by W. Hayes Pettry, Esq., and Emerson W. Salisbury, Esq., on behalf of the defendant Bragg, contains, among others, the two following grounds of error:

“I. The trial court erred in permitting the prosecuting attorney to inquire of the defendant Malcolm Cameron Bragg whether or not the said Malcolm Cameron Bragg had a license to carry the death weapon, a pistol, and required the said Bragg to answer said question over the objection of defendant’s counsel, and which said answer by the defendant was that he did not have a license to carry said pistol.

“II The Trial Court erred in refusing the defendant’s motion for a mistrial when the prosecuting attorney inquired of Malcolm Cameron Bragg whether or not he had a license to carry the pistol and Bragg answered that he did not have a license to carry the pistol, when the said question by the prosecuting attorney had been objected to by the defendant’s counsel.”

Thus it appears from the petition for the writ of error and supersedeas to the. judgment of the intermediate court filed in the Circuit Court of Kanawha County, the circuit court acting as an appellate court, that the circuit court had its attention called to the alleged errors of the intermediate court in admitting the evidence bearing on Bragg’s license to carry the pistol with which he shot Gullett, and in this Court by the assignments of error contained in the petition for a writ of error and supersedeas to the judgment of the Circuit Court of Ka-nawha County, as well as in the printed briefs, the attention of this Court was specifically directed to the alleged errors in admitting the evidence objected to.

However, because the alleged errors of the Intermediate Court of Kanawha County in the admission of the evidence bearing on Bragg’s license to carry the weapon with which he shot Gullett, the objection of defendant’s counsel thereto, and the trial court’s ruling thereon, neither was specifically made a ground of a motion to set aside the verdict and grant a new trial, nor incorporated in a special bill of exceptions, which shows the evidence objected to and the ruling of the trial court in admitting the evidence, the alleged errors would be waived under the ruling of this Court in point 3 of the syllabus of Ritz v. Kingdon, supra, unless the motion of defendant’s counsel for a mistrial, interposed immediately upon the admission of, the evidence over defendant’s objection, which contains the express ground that the “defendant cannot be questioned if he had a license to carry a gun or not” will serve to take this case out of the rule contained in point 3 of the syllabus of the Ritz case.

We, however, after a further examination of the pertinent statutes, find that Code, 56-6-37, in the last sentence thereof, contains the following provision: “But nothing in this or the previous section [Code, 56-6-36, which provides for a certificate in lieu of a bill of exceptions, and Code, 56-6-37, which, inter alia, provides how the certificate in lieu of a bill of exceptions, or a bill of, exceptions is to be considered, and that the instructions in the transcript are all to be presumed to have been given by the trial court] shall be construed as compelling the appellate court to notice or review any matter arising apon a specific exception noted in the transcript of the evidence and proceedings reported unless such exception he specifically pointed out in assignments of error, brief of counsel, or otherwise specifically brought to the attention of the court.” (Italics supplied). In the Revisers’ note to this section it is stated that: “The final sentence is in accord with the views expressed in Hinton Milling Co. v. New River Milling Co., 78 W. Va. 314”, 88 S. E. 1079, and in Ferguson v. Pinson, 131 W. Va. 691, 694, 50 S. E. 2d 476, 478, this Court, citing Code, 56-6-37, said: “Even though matter should arise upon a specific exception noted in the record in an action at law it need not be noticed or reviewed by this Court unless such exception is specifically pointed out in assignments of error or brief of counsel or is otherwise specifically brought to the attention of the Court. Code, 1931, 56-6-37.”

As appears from the Revisers’ note to Code, 56-6-37, the entire section was new; and as the final sentence of the section, as the Revisers’ note suggests, was enacted in accord with the views expressed in Hinton Milling Co. v. New River Milling Co., supra, the holding of this Court in that case, as expressed in point 3 of the syllabus, bears most pertinently upon the question of. appellate procedure in the case under consideration. Point 3 of the syllabus of the Hinton Milling Company case reads: “Where a bill of exceptions certifies all the evidence and shows in addition thereto the rulings of the trial court in admitting or refusing to admit evidence upon the trial, and the exceptions thereto taken at the time, this court will consider such exceptions without special bills of exceptions thereto, provided the particular questions are specified distinctly in the record on the motion for a new trial, or in an assignment of error, or brief of counsel in this court, so that this court may readily and safely find the particular questions or evidence to which the exceptions relate, but this court will not consider such exceptions without such specification, although the bill of exceptions certifying the evidence notes them.” (Italics supplied).

In point 3 of the Ritz case this Court held: “Alleged errors in the admission or the rejection of evidence, to which objection has been made in a trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions which shows the evidence and the ruling of the court in admitting or rejecting it.” In point 4 of the syllabus of the Ritz case this Court held: “To the extent that the holding and statements in the opinions in Hinton Milling Company v. New River Milling Company, 78 W. Va. 314 [88 S. E. 1079]”; and a number of other cited cases, all of which, including the Hinton Milling Company case, were decided before the enactment of Code, 56-6-37, “are inconsistent or in conflict with the holding in point 3 of the syllabus in this case such holding is- overruled and such statements are disapproved.”

In arriving at its holding set forth in point 3 of the syllabus in the Ritz case, this Court cited many cases. only two of which, State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744, and Isabella v. West Virginia Transportation Co., 132 W. Va. 85, 51 S. E. 2d 318, were decided after the enactment of, Code, 56-6-37.

In the Cruikshank case this Court cited former decisions of this Court, including the case of Hinton Milling Co. v. New River Milling Co., supra, “to the effect that errors not specified on a motion for a new trial or not the subject of a special bill of exceptions will be treated as waived and will not be considered by an appellate court.”

In the case of Isabella v. West Virginia Transportation Co., supra, this Court did not carry into the syllabus the rule of appellate procedure set forth in point 3 of the syllabus in the Ritz case, but in the body of the opinion this Court stated: “Although the improper admission of evidence is assigned in this Court as error, and defendant gave it as one of the grounds in support of its motion to set aside the verdict and grant a new trial, no special bill of exceptions is found in the record setting forth the objectionable evidence. Moreover, defendant in its brief fails to point out any specific part of the evidence as being objectionable” (Italics supplied). Evidently the ruling in the Isabella case was prompted by the fact that the defendant by failing to point out in its brief any specific part of the evidence as being objectionable, held that the defendant waived in this Court its objection to the ruling of the trial court in admitting the allegedly objectionable evidence.

Since the decision of this Court in the Ritz case, the Court has decided only three cases involving the question as to how errors of a trial court in the admission or rejection of evidence, objected to, may be saved for appellate consideration. Crookshank v. Hall, 139 W. Va. 355, 80 S. E. 2d 330; Alloy v. Hennis Freight Lines, Inc., 139 W. Va. 480, 80 S. E. 2d 514; and State v. Davis, 139 W. Va. 645, 81 S. E. 2d 95.

In Crookshank v. Hall, supra, unlike the case at bar, no part of the evidence having been made a part of the record by a proper bill of exceptions, or a certificate in lieu of a bill of exceptions, this Court refused to consider the alleged errors in the rulings of the trial court in refusing to admit evidence objected to and in admitting evidence over objection. In the case of Alloy v. Hennis Freight Lines, Inc., supra, this Court adopted verbatim the rule contained in point 3 of the syllabus in the Ritz case; and in the case of State v. Davis, supra, this Court again adopted the rule contained in point 3 of the syllabus in the Ritz case, and in support thereof cited the Ritz case, the case of Alloy v. Hennis Freight Lines, Inc., supra, and several other cases.

We are of opinion that the provisions of Code, 56-6-37, are binding upon this Court, and that the legislative in-tendment, as disclosed by the express words of the last sentence of. Section 37, is clearly expressed so that this Court may and should consider alleged errors arising on the rulings of a trial court in the admission or rejection of evidence objected to, where alleged errors in the admission or rejection of evidence, to which objection has been made in the trial court, are specifically set forth as a ground of a motion to set aside the verdict and grant a new trial; or incorporated in a special bill of exceptions; or are incorporated in the assignments of errors contained in the petition for a writ of error; or set forth in the brief of counsel; or otherwise specifically brought to the attention of the appellate court. This holding requires this Court to disapprove points 3 and 4 of the syllabus of Ritz v. Kingdon, supra, and adopt the holding of this Court in point 3 of the syllabus of the case of Hinton Milling Co. v. New River Milling Co., supra, and to the extent the holdings and statements contained in the opinions of this Court in the cases of State v. Cruikshank, supra, and Isabella v. West Virginia Transportation Co., supra, cited in the Ritz case in support of the holding therein, which cases were decided after the enactment of Code, 56-6-37, and the cases of Crookshank v. Hall, supra; Alloy v. Hennis Freight Lines, Inc., supra; and State v. Davis, supra, decided after the decision in the Ritz case and after the enactment of Code, 56-6-37, are inconsistent or in conflict with the instant holding of this Court, such holding is overruled and such statements are disapproved.

To the extent also that the holding and statements in the opinions in Haldren v. Berryman, 109 W. Va. 403, 155 S. E. 125; Graner v. Boring, 105 W. Va. 505, 143 S. E. 232; Stewart v. Pollack-Forsch Company, 105 W. Va. 453, 143 S. E. 98; Tuggle v. Belcher, 104 W. Va. 178, 139 S. E. 653; Draper v. Mercer Hardware & Furniture Company, 104 W. Va. 144, 139 S. E. 645; State v. Henderson, 103 W. Va. 361, 137 S. E. 749; State v. Male, 103 W. Va. 355, 137 S. E. 751; State v. John, 103 W. Va. 148, 136 S. E. 842; Roberts v. Lykins, 102 W. Va. 409, 135 S. E. 388; Dransfield v. Boone-Armstrong Motor Company, 102 W. Va. 370, 135 S. E. 286; Tredway v. New River & Pocahontas Consolidated Coal Company, 102 W. Va. 135, 135 S. E. 253; Proudfoot v. Pocahontas Transportation Company, 100 W. Va. 733, 132 S. E. 746; Trippett v. Monongahela West Penn Public Service Company, 100 W. Va. 319, 130 S. E. 483; State v. Noble, 96 W. Va. 432, 123 S. E. 237; Moorefield v. Lewis, 96 W. Va. 112, 123 S. E. 564; Guyandotte Coal Company v. Virginian Electric & Machine Works, 94 W. Va. 300, 118 S. E. 512; State v. Jones, 77 W. Va. 635, 88 S. E. 45; Bartlett v. Bank of Mannington, 77 W. Va. 329, 87 S. E. 444; Angrist v. Burk, 77 W. Va. 192, 87 S. E. 74; Hill v. Norton, 74 W. Va. 428, 82 S. E. 363, Ann. Cas. 1917D, 489; Ireland v. Smith, 73 W. Va. 755, 81 S. E. 542; State v. Henaghan, 73 W. Va. 706, 81 S. E. 539; State v. Bingham, 42 W. Va. 234, 24 S. E. 883; Halstead v. Horton, 38 W. Va. 727, 18 S. E. 953; Gregory’s Adm’r v. Ohio River Railroad Company, 37 W. Va. 606, 16 S. E. 819, also cited in the Ritz case in support of point 3 of the syllabus thereof, are inconsistent or in conflict with the holding in this case, such holding is overruled and such statements are disapproved.

In the Ritz case this Court overruled the holding and the statements contained in the opinions in the case of Hinton Milling Co. v. New River Milling Co., supra, and the following cases: Bond v. National Fire Insurance Company, 77 W. Va. 736, 88 S. E. 389; Walters v. Appalachian Power Company, 75 W. Va. 676, 84 S. E. 617; Parr v. Howell, 74 W. Va. 413, 82 S. E. 126; Wright v. Ridgely, 67 W. Va. 319, 67 S. E. 787; Fuller v. Margaret Mining Co., 64 W. Va. 437, 63 S. E. 206; McClanahan v. Caul, 63 W. Va. 418, 60 S. E. 382; Williams & Davisson Company v. Ferguson Contracting Company, 60 W. Va. 428, 55 S. E. 1011; Foley v. City of Huntington, 51 W. Va. 396, 41 S. E. 113; Bodkin v. Arnold, 48 W. Va. 108, 35 S. E. 980; Kay v. Glade Creek & Raleigh Railroad Company, 47 W. Va. 467, 35 S. E. 973; and McDodrill v. Pardee & Curtin Lumber Company, 40 W. Va. 564, 21 S. E. 878, to the extent that such holding and statements are inconsistent or in conflict with the holding of this Court in point 3 of the syllabus of the Ritz case. To the extent, and to the extent only, that the holding and statements in the opinions in the last-mentioned cases are consistent with the holding of this Court in this case and in point 3 of the syllabus of Hinton Milling Co. v. New River Milling Co., supra, such holdings are reinstated and such statements contained in the opinions of this Court in those cases are approved.

We are therefore at liberty to consider whether the Intermediate Court of Kanawha County committed reversible error: (1) In permitting the prosecuting attorney to inquire of the defendant Bragg, whether he, Bragg, had a license to carry the pistol with which he shot Gullett, and in requiring the defendant to answer the question, over objection made by defendant’s counsel, which answer was to the effect that the defendant did not have a license to carry the pistol at the time of the fatal shooting; (2) in refusing the motion of defendant’s counsel made at the time the testimony was admitted, over objection, that the court grant a mistrial, which motion was based specifically upon the admission of the allegedly erroneous ruling of the trial court on the admission of the evidence objected to; and (3) whether the trial court in refusing defendant’s motion that the verdict of the jury be set aside and a new trial awarded.

Even if the ruling of this Court in point 3 of the syllabus of the Ritz case remained undisturbed, the motion of defendant’s counsel for a mistrial, specifying the objectionable evidence as a ground therefor, is an additional reason why this Court should consider the alleged error in the admission of the evidence bearing on the question whether Bragg had a license to carry the pistol with which he shot Gullett.

The motion for a mistrial was made by counsel for the defendant immediately following the ruling of the trial court in admitting the evidence objected to. Then and there the trial court was informed of the possible error in the admission of the evidence, and the court had full and ample opportunity to pass upon the question of the admissibility of the evidence, which the trial court did adversely to the defendant. The motion for a mistrial made, as it was during the course of the trial before the jury had rendered its verdict and before the judgment of conviction had been entered, directed the attention of the trial court to the question whether the evidence had been properly admitted. This even a special bill of exceptions would not do,

This holding renders moot the question whether, if the ruling of this Court in point 3 of the syllabus of the Ritz case remained undisturbed, the specification of error set forth in defendant’s petition of March 8, 1954, in points 1 and 2 thereof, filed under Code, 51-7-7, praying that the trial court authorize and direct the court reporter to furnish a transcript of the evidence and proceedings of the trial court without charge to the defendant for use in seeking an application for a writ of error to the Circuit Court of Kanawha County and to this Court, could be regarded as a special bill of exceptions within the meaning of the holding of this Court in the Ritz case.

If the defendant is guilty of the crime with which he is charged in this indictment, he is guilty of a cold-blooded, wilful murder. To say the least defendant has committed an act which is repugnant to all substantial and law-abiding citizens of this State; all the more reason why his trial should be conducted with the greatest decorum and with the strictest regard for the rights of the defendant. The judgment of conviction, however, based as it is upon the verdict of the jury, should not be reversed unless the overruling by the trial court of defendant’s motion for a mistrial was prejudicial to the defendant. “ ‘A judgment in a criminal case will not be reversed merely because of error committed by the trial court but only when the error has been prejudicial to the accused.’ State v. Taylor, 130 W. Va. 74, 42 S. E. 2d 549. ” Pt. 4, syl., State v. Justice, 135 W. Va. 852, 65 S. E. 2d 743.

It is contended by the attorney general in this regard that the case at bar should be distinguished from the decision of this Court in State v. Foley, 128 W. Va. 166, 35 S. E. 2d 854, in which this Court held in point 2 of the syllabus: “Though the privilege, afforded by West Virginia Constitution, Article III, Section 5, of no.t answering a question addressed to a witness, which, if answered, would tend to subject the witness to a criminal or penal liability, is personal to the witness, nevertheless it is reversible error for the trial court, over objection of counsel for the accused, to require the question to be answered where the answer sought to be elicited is not relevant to the issue of defendant’s guilt or innocence and is designed to prejudice the jury against the defendant.”

True, in the Foley case there was substantial evidence that the defendant believed, and had reason to believe, that he was in danger of losing his life or suffering great bodily harm, and in that case in point 4 of the syllabus this Court held that a defendant may arm himself with a gun, notwithstanding he has no license to carry one, but in that case this Court specifically held in point 1 of the syllabus: “Where, in a trial for murder, allegedly committed with the use of a revolver, the accused voluntarily takes the witness stand in his own behalf, it is reversible error for the trial court, over objection of counsel, to permit counsel for the prosecution to inquire of and require the accused to answer, whether he had a license to carry a pistol at the time the alleged killing took place.”

Though the element of self-defense entered into the Foley case and prompted this Court to hold that the defendant Foley in the circumstances portrayed by the record in that case had a right to arm himself for the purpose of self-defense, the vice in the question addressed to Foley, as disclosed by point 1 of the syllabus of the case, was that the objectionable question elicited an answer from Foley which was self-incriminating.

In State v. Friedman, 124 W. Va. 4, 18 S. E. 2d 653; State v. Mullenax, 124 W. Va. 243, 20 S. E. 2d 901; and State v. McMillion, 127 W. Va. 197, 32 S. E. 2d 625, this Court held that a defendant in a criminal case who voluntarily becomes a witness in his own behalf may be required to state in response to questions propounded on cross-examination whether he has been convicted of other offenses. The decisions in those cases, however, were based upon the postulate that a question addressed to a defendant concerning a former conviction went to the witness’s credibility, and in those cases the Court invoked the provisions of Code, 57-3-6, which provided that: “In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused” if he “voluntarily becomes a witness he shall, as to all matters relevant to the issue, be deemed to have waived his privilege of not giving evidence against himself and shall be subject to cross-examination as any other witness * * *.”

Though the element of self-defense, which was present in the Foley case, is not contained in this record, the fact remains that under Code, 61-7-1, it is a misdemeanor to carry a pistol without the license provided by statute, which is a crime other and different from the crime for which the defendant Bragg was indicted and tried, namely, murder.

Code, 57-3-6, must, and we so read it, be read with West Virginia Constitution, Article III, Section 5, which provides in part: “* * * nor shall any person, in any criminal case, be compelled to be a witness against himself * * This Court has guarded the rights of an accused under this constitutional provision to such extent that it has been held that the ruling of a trial court in a criminal case permitting the prosecuting attorney, over objection of the defendant, to comment before the jury upon the failure of the defendant to testify in his own behalf, violates West Virginia Constitution, Article III, Section 5, and constitutes reversible error. State v. Costa, 101 W. Va. 466, 132 S. E. 869; State v. Jones, 108 W. Va. 264, 150 S. E. 728. This Court has never departed from the principle that the accused in a criminal case is protected against compulsory self-incrimination. This principle was inherent in the common law, both in England and the Colonies, and was recognized in the Virginia Bill of Rights of 1776. It is applicable, in our opinion, to the instant case. For a learned and lucid discussion of the law of self-incrimination, see the address of Honorable Lant R. Slaven, President of the West Virginia Bar Association, at the Seventieth meeting of the association held in 1954, and, in particular, see Volume 70, Annual Report of The West Virginia Bar Association, page 79.

Though the prosecuting attorney on cross-examination asked and the trial court required the defendant to testify that he had stolen his father’s and brother’s furniture, and sold it to a used furniture company for seventy-five dollars, which he appropriated, no objection was noted of record to this testimony, and though the prosecuting attorney should not have elicited the testimony from the defendant, the evidence, not being objected to, was not saved as error for the purpose of consideration by either the Circuit Court of Kanawha County, acting as an appellate court, or by this Court upon writ of error. An error in admission of evidence not objected to by the defendant is deemed waived by him. State v. Mayle, 136 W. Va. 936, 69 S. E. 2d 212; State v. Files, 125 W. Va. 243, 24 S. E. 2d 233.

Error is assigned to the trial court’s ruling in giving, over defendant’s objection, State’s instruction No. 2. Defendant’s counsel assert that this instruction does not adequately inform the jury as to its sole province under Code, 62-3-15, upon finding a defendant guilty of murder of the first degree, to determine whether the defendant shall be executed or confined to the penitentiary for life. The part of State’s instruction No. 2, which defendant asserts is inadequate in that regard and misleading, is the part reading: “* * * if you believe from the evidence in this case beyond all reasonable doubt, that the deceased, Robert William Gullett, was shot and killed by the defendant, Malcolm Cameron Bragg, while he, the said Malcolm Cameron Bragg, was engaged in committing, or attempting to commit, a robbery upon the said Robert William Gullett, then you should find the defendant guilty of murder of the murder of the first degree, and should you so find, it is your province to determine whether the defendant be punished by confinement in the penitentiary of this State for life or by execution, should you find him guilty of murder of the first degree, and further find that he be punished by confinement in the penitentiary you should find in your verdict. Should you find him guilty of murder in the first degree and find that he be punished by death your verdict then would be, ‘We, the jury find the defendant guilty of murder in the first degree as charged in the indictment.’ ”

While State’s instruction No. 2 informs the jury that it is within its province to determine whether the defendant be punished by confinement in the penitentiary of this State for life or by execution, it does not measure up and conform to the strong and lucid language contained in Section 15 of the Code, that: “If such further finding [that the defendant be punished by confinement in the penitentiary] be not added to their verdict, the accused shall be punished with death, but, if added, he shall be punished by confinement in the penitentiary during his life.”

In the recent case of State v. Loveless, 139 W. Va. 454, 80 S. E. 2d 442, this Court had under consideration an instruction, which properly defined murder of the first degree, and further read that: “ ‘The Court further instructs the jury that murder in the first degree is punishable by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict.’ ” In point 3 of the syllabus of that case, this Court held: “In a case in which the jury may return a verdict of guilty of murder in the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that, in the event such a verdict is returned, they may further find that the accused be punished by confinement in the penitentiary and that, in the absence of such finding, a sentence of death must be pronounced by the court.”

Equally strong language was used by this Court, setting forth the duty of a trial court to sentence a defendant to be executed where the jury has rendered a verdict of murder of the first degree without recommendation of confinement in the penitentiary for life, in point 2 of the syllabus of the case of State v. Goins, 120 W. Va. 605, 199 S. E. 873, which reads: “It is the duty of the trial court when a cáse is submitted to a jury so that their verdict may be guilty of murder in the first degree to instruct them that in the event they return that verdict they may further find that the accused be punished by confinement in the penitentiary, in which case he will be sentenced to life imprisonment, and that otherwise the accused will be punished with death.”

And in the still earlier case of State v. Chaney, 117 W. Va. 605, 186 S. E. 607, this Court in the syllabus overruled the holdings of the Court bearing on the instant question in the cases of State v. Cobbs, 40 W. Va. 718, 22 S. E. 310; and State v. Beatty, 51 W. Va. 232, 41 S. E. 434, and held: “It is the duty of the trial court, in prosecution for murder, to inform the jury, without request, of their authority under Code (1931), 62-3-15, to determine whether the accused, if found guilty of murder in the first degree, shall be punished by death or confinement in the penitentiary for life. * *

The policy underlying the decisions of this Court in the Loveless, Goins and Chaney cases is based upon the mandatory provisions of Section 15 of the statute, and is firmly imbedded in the law governing the trial of criminal cases had under indictments charging the defendant with having committed murder of the first degree. That the trial court has the duty in a criminal case, in which a verdict of murder of the first degree may be rendered, to instruct the jury that if the verdict of the jury does not contain the finding that defendant be punished by confinement in the penitentiary, the court shall sentence the defendant to death, but, if such finding is added, the defendant shall be punished by confinement in the penitentiary during his life. This, in our opinion, State’s instruction No. 2 did not do, nor is the inadequacy of State’s instruction No. 2 supplied by any other instruction given by the trial court.

In view of the fact that this case must be retried, defendant’s assignments of error based upon the trial court’s refusal to continue the case and to grant a change of venue are moot.

Again it becomes the duty of this Court to caution the prosecuting attorneys of this. State against the use of their positions in the trial of criminal cases by referring in their argument to the jury to matters which are extraneous to the record. In the case at bar the Prosecuting Attorney of Kanawha County in his argument to the jury told the jury how the killing of Gullett took place, when a careful review of this record discloses that there were no facts contained therein justifying the remarks of the prosecuting attorney.

In addressing the jury the Prosecuting Attorney of Ka-nawha County stated: “In my opinion Gullett was driving that taxi-cab, going along at a moderate rate of speed, thinking about nothing, and Bragg took that pistol and put it over at his temple and pulled the trigger in order to take the money off of him that he knew that he had. The defendant reached over, grabbed the steering wheel and put his foot on the brakes and stopped the car.” That a prosecuting attorney in the trial of a criminal case has a quasi-judicial duty cannot be gainsaid. In the case at bar the prosecuting attorney had no right to make the statement to the jury above quoted. In doing so, even if there were no other error in the case at bar, his action in that regard would have constituted reversible error. State v. Graham, 119 W. Va. 85, 191 S. E. 884; State v. Hively, 103 W. Va. 237, 136 S. E. 862; State v. Jarrell, 76 W. Va. 263, 85 S. E. 525; Harold v. Commonwealth, 147 Va. 617, 136 S. E. 658; 5 M. J., Criminal Procedure, Section 65; 2 M. J. Argument and Conduct of Counsel, Sections 15 and 17.

For the foregoing reasons the judgments of the Intermediate Court and Circuit Court of Kanawha County are reversed, the verdict of the jury set aside, and a new trial awarded.

Judgments reversed; verdict set aside; new trial awarded.