60 W. Va. 576 | W. Va. | 1906
Livy L. Barrick was sentenced to the penitentiary for thirteen years upon an indictment in the circuit court of Wetzel county charging him and Fred Detwiler, Charles Pharet and Charles E. Foyle with rape upon the person of Martha Harbert, a girl between 17 and 18 years of age.
It is said that the court erred in overruling a demurrer to the indictment. One ground of demurrer is, that Martha Harbert is not alleged in the indictment to be a female. We hold that her Christian name imports that she is a female.
The other ground for the demurrer is that in naming Charles Foyles the words “commonly called ‘Happy Jack,’ ” are used. It is only a further description of identity of the person; only an alias giving another name by which he is called, to meet proof. The law of criminal pleading allows the use of an alias name. 2. Cyc. 19. That name, “Happy Jack,” is called by counsel an epithet, and it is said to have been used for derision and ridicule hurtful to the accused. We do not see force in this. And how could it harm Bar-rick when the name applied to another defendant?
The court overruled a motion to strike out all the evidence of Martha Harbert because she was brought into court upon a cot and reclined upon it while testifying, stating that she was sick. Can counsel sustain the claim that a suitor in court is to lose the testimony of a witness because he appears in court on crutches, or in an invalid chair or cot? No authority is given us for such an extreme stand.
Complaint is made that the court refused to allow answers to some questions whether the witness was acquainted with the reputation of the prosecutrix. Some of the questions did not fix the time of the prevalence of the reputation before the offense, as they must. 4 Elliott on Ev., section 3101. And the questions do not show that the witnesses obtained their knowledge of reputation before the transaction, before the community was agitated, and perhaps divided, in sentiment and opinion as to such reputation; before the lis mota. 1 Greenl. Ev., section 461 (1). It has been held that a witness called to impeach a prosecutrix on a trial for rape must confine himself to what he knew before the offense. State v. Forshner, 80 Am. D. 132; 53 Am. St. R. 482. I regard this sound law, and think that it would overrule the
It is assigned as error that Barrick was separately tried, and that the record does not show that either he or the state asked a separate trial. The state can choose to try defendants jointly indicted either jointly or separately, if the court allows it. State v. Prater, 52 W. Va. 132. Moreover, no objection to a separate trial on the part of the prisoner appears in the record. If the point were tenable, that would have to-appear; but he has no right to object. Nor is their anything in the fact that the record does not state that the state elected to have a separate trial. As there was a separate trial, we must assume that the state asked, and that the court granted it.
It is objected that the record does not show that the stenographer who took the evidence was sworn. We will presume that he- was. At any rate, the court heard the evidence, and though it did use the stenographer’s report of the evidence, the court certifies it as the evidence taken on the. trial. There is no evidence in the record of the omission of an oath.
Upon a motion for a new trial Barrick filed the affidavit of his sister, Daisy Barrick, stating that the prosecutrix had admitted to her that the defendants were not guilty; that she had gone to the blacksmith shop, where she alleged the oilense had been committed, of her own accord; that the defendants were no more guilty than she'was; that she would not have prosecuted them but for persuasion by a certain person, and would not prosecute the case further. A similar affidavit of Zora Bland was filed. Rome other affidavits were filed stating
Zora Bland was brought into court after the evidence had been closed, and the state’s attorney was making the closing
The prosecuting attorney, in opening the case to the jury, said: “The information I have, and what I believe the evidence to be, is that she (Martha Harbert) was caught by the neck and held by this defendant and the other defendants and each ravished and raped her. ’ ’ This is no assertive statement. It cannot be held that the attorney intended it to be taken by the jury as evidence, or that the jury would act on it. It merely is a short statement of what he expected the evidence to be. It is very common for an attorney to make a statement of the salient facts of the case intended to be proved, in order to acquaint the jury with the case so as to enable them to apply the evidence. “It should develop facts' which the testimony is to establish, but none which the party is not in a situation to prove. ” 1 Bishop, Crim. Proced., section 969. It is allowable and usual. 2 Ency. Pl. & Prac. 706; Dowda v. State, 74 Ga. 12. Besides, if objectionable, there should have been a request for an instruction to disregard it before it can be used for error. Landers v. Railroad, 46 W. Va. 492. How could it possibly be ground of reversal? State v. Shawn, 40 W. Va. 1; State v. Shore, 31 Id. 491.
The evidence is elaborate and highly conflicting, and the case rests on its weight and credit, and under many cases this Court is forbidden to set it aside as contrary to the evidence. We have carefully examined all the points .made by counsel, and have been compelled to conclude that we cannot reverse the trial. The case has been fairly tried by a jury under the supervision of a competent, fair-minded judge. He has carefully considered the application for a new trial, the only important feature of the case under the assignments of error. We have been careful the more as a young man, just 21 years of age, has had put upon him by a jury of his country the stigma of guilt of a deeply heinous crime upon a young girl, hardly out of childhood, under most harrowing circumstances. If guilty, and he has been so found to be by a jury, the penalty is light. It is only another instance of thousands where “King Alcohol” has wrought ruin. We are compelled to affirm the judgment.
Affirmed.