¶1 dissenting:
¶2 I respectfully dissent from the ruling of the majority in this case.
¶3 The evidence was such as to warrant the verdict of the jury. The instruction, the giving of which is made the basis of the court’s ruling, was not specifically objected to, as required by paragraph (e) of Rule VI of the Rules of Pleading, Practice and Procedure, 116 W. Va. lxiii. It is held by the majority that this rule does not apply to criminal cases, and to this I cannot agree.
¶4 The rule in question reads as follows:
“All instructions to juries shall be reduced to writing and a copy presented to opposing counsel at the conclusion of the evidence. The Court will instruct the jury prior to argument. Supplementary instructions may be given later. Objections, if any, to each instruction shall be made when the same is offered; specific grounds of objection only will be considered.”
¶5 I see nothing in the language employed to justify the holding that its application is limited to civil cases, and so long as the rule is allowed to exist, it should be applied to all cases tried before a jury. While we have applied the rule with strictness in civil cases, we have recognized that in extreme cases its rigidity should be relaxed to avoid injustice. Hale v. McGinley, 119 W. Va. 565, 195 S. E. 201; Saunders v. McCown, 120 W. Va. 294, 198 S. E. 520. In Montgomery v. C. & P. Tel. Co., a civil case decided at this term, 121 W. Va. 163, 3 S. E. (2d) 58, the majority held that where a specific objection to an instruction had been made, this court would not consider an additional and different objection made for the first time in this court. We thus have a rigid, and, as I *176 view it, an extreme application of the rule in one class of cases, and a definite refusal to apply it in another. I think the rule should be applied in all cases under the liberality suggested in the Hale and Saunders cases, supra, and in keeping with the dissenting opinion in the Montgomery case, and I concede that even greater liberality would be justified in a criminal case.
¶6 I would affirm the judgment of the court below, and I am authorized to state that Judge Hatcher concurs in this dissent.