88 W. Va. 231 | W. Va. | 1921
Hugh B. Bridgeman and Eula Miller were indicted, tried and convicted in the Criminal Court of Harrison County of lewd and lascivious cohabiting together and with each other, and the former was adjudged to pay a fine of $100.00 and was sentenced to confinement in the jail at hard labor for 30 days; and the latter was fined $100.00; both sentences being imposed on the first day of December, 1917.
Defendants assign as error: (1) The refusal of the court
Bridgeman is a dentist, and had rented four adjoining rooms on the second floor of the Elk Bridge Building in Clarksburg, the first two of which rooms he used for dental offices, and the other two, which were adjoining, all being in one suite, he occupied as living rooms. The room nest to those used for offices was furnished with a bed, piano, dresser, chairs and the like, and the other room, the back room, was used as a dining room, in which was a table, a kitchen cabinet, a davenport, and it was otherwise fitted up for a kitchen and living room. In July, 1915, he employed Eula Miller to assist him in his dental work at $6.00 per week. At that time she was 17 years old and resided with her father on Baltimore Street, about y2 mile from the Elk Bridge Building. In September, 1916, she began living in these two living rooms occupied by Bridgeman, and was yet residing there at the time of the trial. In May, 1917, she was delivéred of a boy baby. The following August both defendants were arrested and bound over to answer an indictment for the offense for which they were convicted, were indicted at the succeeding November term of the criminal court of that county and tried and convicted at that term. Mrs. Cozad, a sister of Eula Miller, testified that she visited her sister at these living apartments of Dr. Bridgeman quite often before defendants were arrested in August, .1917, when she, saw her sister doing the cooking and house work; that she had been there aS much as two days and two nights at a time, and saw no one else rooming there or staying there at any time except the defendants; that on one occasion she saw them in bed together in the room which contained the piano, and which room opened into the kitchen, where she, witness, slept on the davenport. Eula Miller stated to the witness that she and Dr. Bridgeman were married, but Doctor Bridgeman never made such a statement. She was there at noon nearly every day for a considerable period when she
All of the witnesses for the State who visited the defendants at their apartments were under the impression, from their conduct and manner of living, that the defendants were married and were living together as man and wife. Quite a number of them testified to the actions of Dr. Bridgeman after the baby was born, stating that he held himself out to be the father of the child and was proud of its size and looks, nursed it and seemed to be very proud of it.
On the other hand the defendants are positive in their statements that they never lived together as man and wife, never held themselves out to be married, never occupied the
When the case was called for trial defendants moved the court for a continuance on account- of the absence of Lee Rogers and Harold Dunn, claimed to be important witnesses, without whose evidence they could not safely go to trial. Rogers had been summoned, but Dunn had not been found by the sheriff. A rule was issued against Rogers and he afterwards appeared and gave his testimony, which was not important. Bridgeman was under bond to answer the indictment, and, after the indictment was found, he did not have subpoenas issued for his witnesses until four days after. He knew Dunn very well and testified that he had lived with him at his apartments during most of the time that Miss Miller lived there, and that this witness had been at Clarksr burg up until about the time of the trial, but that he did not know what had become of him. He stated that this witness lived in East End, Industrial, an addition to the city of
In the case of State v. Harrison, Judge Brannon says: “The judge presiding sees all the surroundings of the trial, and can better than we decide whether the design of a motion for a continuance is delay; or whether a continuance is really essential to a fair and proper trial.” In the case of Ohio Valley Bank v. Berry, 85 W. Va. 95, it is held: “A motion for the continuance of a cause is always addressed to the sound, but not arbitrary, discretion of the court, and when based on the absence of a witness depends on the diligence employed to obtain his presence and the materiality of his evidence, and a judgment denying such motion must plainly appear to be erroneous, to justify a reversal thereof. There is no presumption of due diligence in such cases, from the mere suing out of summons for an absent witness. Diligence to obtain his presence must be affirmatively shown, as
Defendants attempted to show by cross-examination of G-. W. Miller that on one occasion a dispute arose between him and Eula, his daughter, while she. was at home, over whether the daughter or a niece should clean the parlor or wash the dishes, and as a result of the dispute he struck Eula over the head with a thin board several times, breaking the board into several pieces. The witness began telling about the occurrence, saying that he was correcting her for some of her misdoings and for “sassing” him, and although angry, he did not hurt her, when, upon objection, the court refused to permit further testimony along that line, saying that it was not pertinent to the issue. The witness was further asked if he and his wife did not on that occasion tell the daughter to leave home, and an objection to the question was sustained. Afterwards the witness said he did not tell her to leave home, and did not remember whether the incident was before or after she began staying with Bridgeman, but thought it was after she had begun to stay at night at the Bridgeman apartments. Defendants also attempted to show by Eula Miller that her father and mother attempted to compel her to sleep with the hired girl, who was dirty, filthy and lousy, and that her father beat her over the head with a box and told her to leave, and that she was compelled to give up her room and occupy that of the hired girl, and upon refusal to sleep with the hired girl her mother told her to leave, and drove her away, and because of this alleged ill treatment at home, she went to sleep at the Bridgeman rooms, having no other place to go. The court refused to allow this evidence, and evidence of this character to go to the jury. Defendants assert that this evidence was proper to show that Eula Miller had no intent to lewdly and lasciviously cohabit with Bridgeman when she left her home to go to his apartments. Whether her intent was innocent at that time is not
The remaining ground of error alleged is that the evidence is not sufficient to justify the verdict, and that the court should have set aside the verdict and granted a new trial for that reason. We are cited to the cases of State v. Foster, 21 W. Va. 767; State v. Miller, 42 W. Va. 215; State v. White, 66 W. Va. 45; and State v. Ramage, 75 W. Va. 524.
The crime of lewd and lascivious cohabitation under section 7, ch. 149 of the Code, means the living and cohabiting together of a man and woman, not married to each other, in the same house or apartments, as husband and wife. As stated in the Miller case, occasional acts of secret illicit intercourse are not alone sufficient. It must be proved to the
In the case under consideration the defendants were together occupying the two rooms, and it is- very evident that they occupied them together almost continuously after she left her father’s home and began sleeping at the Bridgeman apartments. The evidence of the various witnesses who visited the apartments is summed up in that of Mrs. Gozard when she said, “They lived there seemingly the same as the rest
Instructions were given to the jury. They do not appear in the record, and evidently properly propounded the law applicable to the facts, as no exceptions were taken thereto.
It is peculiarly within the province of the jury to pass upon the credibility of the witnesses, and, although the evidence of the State’s witnesses is wholly contradicted by the two defendants, we cannot invade the province of the jury, and have concluded that the evidence is sufficient to sustain the verdict.
Affirmed.