Greenl. Ev., § 29." State v. Flanagan, sufficiency of confession as evidence, 26 W. Va. 117. the title CONFESSIONS, vol. 3, p. 79.

In

In a criminal prosecution the mere preponderance of evidence will not warrant the jury in finding the defendant guilty. Before the jury can convict the defendants, they must be satisfied of their guilt beyond all reasonable doubt, and unless so satisfied, the jury should find the defendants not guilty. criminal cases even when the evidence is so strong that it demonstrates the probability of the guilt of the parties accused, still if it fails to establish beyond reasonable doubt the guilt of the defendants or one or more of them in manner and form as charged in the indictment, then it is the duty of the jury to acquit the defendant or defendants as to whose guilt they entertain such reasonable doubt. State v. Johnson, 49 W. Va. 684, 39 S. E. 665.

Judicial Certainty as to Guilt.—The jury can found their belief upon nothing but the evidence. "For the purposes of public justice, it is essential to maintain with rigor the distinction between judicial and moral truth. I may have, for instance, as a juror, a moral conviction of the guilt of the defendant on trial. He may have confessed his guilt to me; or I may have learned from persons, not called as witnesses, facts inconsistent with his innocence. This, however, is not to be permitted to have the slightest effect on my judicial reasoning; for, to punish even a guilty man without judicial certainty of his guilt would be recognizing a principle fatal to public justice.' Whar. Cr. Ev, § 4." State v. Sheppard, 49 W. Va. 582, 607, 39 S. E. 676.

More Evidence Required in Some Crimes than Others.-As to cases requiring the testimony of two witnesses or of one witness and corroborating circumstances in order to convict, see, for instance, the titles PERJURY; SEDUCTION; TREASON. See also, the titles EVIDENCE; WITNESSES.

Confession. As to the weight and

see

(2) Evidence as to Character.

See ante, "Character of Accused," V, J, 5, b, (15).

It is the duty of the jury to take into consideration the good character of the defendant in a criminal prosecution as developed from the evidence in the case, and if from such evidence, as well as from all other evidence, facts, and circumstances in the case, they have a reasonable doubt as to the guilt of the defendant, they must find him guilty. State v. Staley, 45 W. Va. 792, 32 S. E. 198. See the title REASON

ABLE DOUBT.

not

The character of a prisoner, when proven, whether good or bad, is a fact to be considered by the jury, but its weight as affecting the guilt or innocence of the prisoner is a matter for the determination of the jury in connection with other facts proven in the case. Crump v. Com., 98 Va. 833, 23 S. E. 760. See also, Briggs v. Com., 82 Va. 554.

The character of the accused, good or bad, when proved, may always be received and weighed by the jury in favor of or against him as the case may be. Briggs v. Com., 82 Va. 554. But see Crump v. Com., 98 Va. 833, 23 S. E. 760.

Upon a prosecution for felonious seduction the jury are not entitled to acquit the accused if they believe the evidence as to his good character for industry and veracity is sufficient to raise a reasonable doubt as to his guilt. Flick v. Com., 97 Va. 766, 34 S. E. 39.

In a prosecution for felonious seduction evidence of good character for industry and veracity, will not support an instruction that the jury have the right, in their discretion, to acquit the prisoner if they believe the evidence of his good character is sufficient to raise a reasonable doubt as to his guilt. Flick v. Com., 97 Va. 766, 34 S. E. 39.

See ante, "For What Purposes Admis- to answer incriminating questions, see sible," V, J, 5, b, (15), (b). the title CONSTITUTIONAL LAW, vol. 3, p. 140,

14. New Trials.

See the title NEW TRIALS.

15. Punishment.

16. Cumulative Sentence for Habitual Criminals.

As to the imposition of additional punishment for second offenses, see the

See the title SENTENCE AND title SENTENCE AND PUNISHPUNISHMENT.

MENT.

Criminal Libel.

See the title LIBEL AND SLANDER.

Criminal Procedure.

See the title CRIMINAL LAW, ante, p. 1, and references given.

Crimination.

As to privilege of accused to refuse to criminate himself, see the title CONSTITUTIONAL LAW, vol. 3, p. 198. As to privilege of witness to refuse to criminate himself, see the title WITNESSES.

Criticism.

See the titles CONTEMPT, vol. 3, p. 236; LIBEL AND SLANDER.

CROPS.

I. Growing Crops Considered Realty, 95.

II. Rights as to Crops, 95.

A. Growing Crops Go with Land on Sale or Devise, 95.

1. General Rule, 95.

B. Under Sale of Land, 95.

1. All Crops, Not Severed or Not Reserved, Pass to Purchaser, 95. C. Under Devise of Land, 96.

1. When Crops Will Pass, 95.

2. Death of Testator at Certain Time Prevents Passing of Crops, 96. 3. Rights of Widow under Devise, 96.

D. Under Relationship of Landlord and Tenant, 97.

1. General Rule, 97.

2. Rights of Tenants, 97.

3. When Cropper Is Not Tenant, 98.

4. Landlord May Sue for Damage to Crop, 98. E. Under Relationship of Guardian and Ward, 98. 1. Right of Husband of Ward, 98.

F. Under Relationship of Trust and Trustee, 98.

1. Where Injunction Lies, 98.

III. Code Provisions as to Growing Crops Not Severed, 98.

A. No Distress or Levy--Indian Corn Excepted, 98.

IV. Offenses Created by Illegal Taking of Crop, 98.

V. Evidence, 99.

A. Admissibility in General, 99.

B. Parol Evidence, 99.

1. When Admissible, 99.

2. When Not, 99.

VII. What Deeds of Trust Conveying Crops Not Fraudulent, 99.

CROSS REFERENCES.

See the titles DAMAGES; DEEDS OF TRUST; EVIDENCE; FRAUDULENT AND VOLUNTARY CONVEYANCES; FRAUDS, STATUte of; GUARDIAN AND WARD; LANDLORD AND TENANT; MORTGAGES; PAROL EVIDENCE; TRUSTS AND TRUSTEES; WILLS.

A growing crop of wheat is realty, and under the statute of frauds can be sold only by a contract in writing. Kerr v. Hill, 27 W. Va. 577.

V.

Hubbs v. Swabacker, 51 W. Va. 441, 41 S. E. 164, quoting Baunstoss Stahler, 33 Pa. St. 251, 75 Am. Dec. 592, says: "Growing crops of grain and vegetables are goods and chattels and not real estate and may be conveyed by verbal contract or taken and sold under execution. This is the common law." See also, the title FRAUDS, STATUTE OF.

II. Rights as to Crops.
A. GROWING CROPS GO WITH
LAND ON SALE OR DEVISE.
1. General Rule.

By the common law the growing crop is a part of the freehold and goes with the land on sale or devise of the latter. There are exceptions, however, in favor of husbandry and relate to emblements; but the exceptions cease with the reason and policy on which they are founded, and the general rule is unquestionable. Engle v. Engle, 3 W. Va. 257; Hilleary v. Thompson, 11

W. Va. 117.

B. UNDER SALE OF LAND.

v. Pendleton, 1 Leigh 305; Kerr v. Hill, 27 W. Va. 605.

Judicial Sale. Where a trustee under an ordinary deed of trust to secure a debt sells land at a public sale, a crop of wheat growing upon it sowed by the owner of the land passes to the purchaser of the land, unless it was reserved. Kerr v. Hill, 27 W. Va. 576.

"I

An agreement was entered into according to the following terms: convey you my land, slaves, etc., as a security for the debts I owe you; I bind myself to pay you those debts by a given time, and if I fail, you may proceed, and get a decree for a sale of the subject; meantime, I remain in possession, use the slaves, and take the profits of the land; but, whenever you get a decree, you may immediately sell everything." It was held, under this agreement, that if the mortgagor goes on and makes preparation for a crop, he does it with full knowledge that the land with the crop is subject to be sold, if the decree can be obtained before he severs it. Nor does he lose anything by this; for the crop on the land enhances the price; if by this increase, the debt be overpaid, he gets of his labor goes (as he had agreed it the overplus; if not, still the full value should go) to the payment of the debts secured by the mortgage. Crews

1. All Crops, Not Severed or Not Re- v. Pendleton, 1 Leigh 305. served, Pass to Purchaser.

There can be no doubt, that if one sell his land without any reserve, all crops, not severed, will pass to the purchaser. They are a part of the subject, and enter into the price. Crews

The chancellor, in May 1822, decrees foreclosure, of a mortgage upon land, slaves, and stock, and directs his marshal, unless the debt be paid within six months, to sell the subject to satisfy the debt; the mortgagor is al

Where a devise of land includes the personal property thereon, crops growing on it at the time of the testator's death pass with the land to the devisee. Dunford v. Jackson, 2 Va. Dec. 196. See the title WILLS.

lowed to retain possession and sow tions, to be stored, will pass. Carnagy crop in spring of 1823; the marshal v. Woodcock, 2 Munf. 234. See the sells the subject in June, 1823, and title WILLS. mortgagee purchases it, and completes the crop; afterwards, and before marshal's sale was reported and confirmed, creditors of the mortgagor levied a fi. fa. on the crop of 1823, then gathered. It was held, that the vendee at the marshal's sale was entitled to the then growing crop. The chancellor ought in such case to protect the vendee's property in the crop by enjoining the mortgagor's creditors from proceeding under the execution. Crews v. Pendleton, 1 Leigh 297. See the title MORTGAGES.

A purchaser at a trustee's sale who gets the whole amount of property that he understood he was bidding for, can not sustain a valid legal claim to a portion of the property covered by the trust deed, which was a crop, and which he understood at the time of the sale, was excluded therefrom. Hubbs v. Swabacker, 51 W. Va. 439, 41 S. E.

164.

Error to Confirm Sale on Condition That Purchaser Surrender Claim to Crop. If the confirmation of a sale of land on which was a growing crop was made conditional upon the purchaser surrendering any claim to the landlord's share of the growing crop, and the sale had been in all other respects fair, this would be an error, of which just complaint could have been made by the purchaser. It would not be an error to the prejudice of the debtor, as it would make the land bring more money. Hilleary v. Thompson, 11 W.

Va. 119.

C. UNDER DEVISE OF LAND. 1. When Crops Will Pass.

By a devise of a tract of land in fee simple, together with all the crops thereon, whether gathered or growing at the time of the testator's death, not only the crops made the year the testator died, but those of the preceding year remaining on the land, and those brought thither, from other planta

By a devise of the residue, the emblements, growing on lands specifically devised to another, will pass. Fleming v. Bolling, 3 Call 75, distinguishing from Shelton v. Shelton, 1 Wash. 53. See the title WILLS.

2. Death of Testator at Certain Time

Prevents Passing of Crops.

The crops growing at the time of testator's death (he having died in September), do not pass under the word appurtenances to the devisees of the respective plantations, but go into the surplus. Shelton v. Shelton, 1 Wash. 53. See the title WILLS.

By the common law of England, emblements upon lands devised, go with the lands, but our act of assembly, passed in 1748, ch. 3, § 30, has controlled that common law, by declaring that when a testator dies, at the season of the year in which the present testator died (August), the growing crops shall not pass. Fleming v. Bolling, 3 Call 82.

3. Rights of Widow under Devise.

Entitled to One-Third Severed Crop under Dower.-E. devised his lands, subject to the dower of his wife, and prior to his death a crop of wheat had been sown thereon, which was harvested by the executor before a decree was had assigning dower. It was held, that as the widow was entitled at the death of the husband to be endowed of one-third of the land with the crop growing on it, so if the crop be severed before the assignment of dower she is entitled to be endowered of the land in like manner, and of one-third of the crop thus severed, for by the severance the estate had been diminished in value to the amount of the