130 S.E. 102 | W. Va. | 1925
For the crime of statutory rape committed upon Margaret Sisler, a female 13 years of age, defendant was convicted, and on March 25, 1925, was sentenced to 10 years confinement in the penitentiary. On this writ numerous errors are assigned for reversal.
The prosecutrix lived with her mother and step-father within about two miles of Terra Alta, in Preston County. Defendant was about 39 years of age, was married and the father of three children, the youngest being five years of age, and resided in Maryland a short distance from the West Virginia boundary line. About the time of the alleged offense he was moving or had moved his family and personal property from Maryland into Preston County. The alleged offense, according to the State's evidence, occurred between three and four o'clock on the afternoon of November 22, 1924. *183 It appears that three visitors, a woman and two men, came to the home of Sam Lewis, the step-father of the prosecutrix, Margaret Sisler, one afternoon in November, 1924, which date these visitors, Lewis and his wife, the prosecutrix and her eleven-year-old brother Claude, fixed as Nov. 21, 1924. Later, about supper time, defendant and Harry Pickford arrived in a Ford car. All of them lodged with Lewis that night, and the next morning they all left. Lewis took his car and accompanied by his wife drove the woman visitor and her two male companions to Terra Alta, thence to Albright and thence to another point where there was a public sale. Defendant and Pickford also went to Terra Alta in their car, arriving there at the same time Lewis and his party arrived. Margaret Sisler and her brother Claude, remained at the Lewis residence. She says that about three o'clock that day defendant came to the house and gave her little brother Claude some money and sent him to get cider at some neighbor's house, a distance of a half a mile or more away. The boy went as directed, returning from the first neighbor's house without cider. He was then sent to another house about the same distance away and returned empty handed. He then made another trip to a house perhaps further away and brought back some cider, when defendant gave him twenty cents. While the boy was gone, it does not appear on which trip, she says defendant took her from the dining-room into a bed room and had sexual intercourse with her. She does not say that he forced her. She says he gave her one dollar for "the thing he done". When the boy returned with the cider defendant drank some of it and went away, telling both to say nothing about his visit. The boy corroborates the girl in the particulars that defendant came to the house and sent him away for cider, and left after it had been obtained. The prosecutrix says that no other person ever had sexual intercourse with her. The mother and step-father returned from their auto trip about eight or nine o'clock that evening. The next morning the girl told her mother what had happened the day before. In the latter part of December following, the mother accompanied by the girl went to a justice of the peace and made the complaint. Defendant was *184 arrested and placed in jail. About the middle of January, 1925, the girl's sexual organs were examined by Dr. Harmon, and his evidence will be later detailed. The boy Claude is corroborated by persons at the houses which he visited for cider, to the effect that he came to the houses for cider some day in November.
The defense, in part, consisted of an alibi. Defendant admitted that he and Pickford lodged with Lewis some day in November, and left the next morning, as detailed. He and Pickford both say they went from there to Terra Alta, thence to Oakland, Maryland, and that they were there or in that neighborhood all day in each other's company and in the company of others until ten o'clock that night. Other witnesses say that on the 22nd of November, 1924 (the day when the offense is alleged to have been committed), defendant was actually moving his household effects and stock from Maryland to Preston County. Cumulative of this testimony is the affidavit and evidence of two witnesses that they assisted in the moving, and that their employer made a charge therefor on the day the work was done, namely, the 22nd of November. These affidavits and evidence of these two witnesses was tendered as after-discovered evidence, on a motion for new trial. The material substance is that there was documentary evidence (a book charge for hauling) made the day the work was done.
In addition to the alibi, defendant introduced evidence of physicians who had examined him, tending to show that by reason of orchitis, resulting from an attack of mumps in the year 1921, he was incapable of sexual intercourse. Evidence of many witnesses was taken to impeach the prosecutrix's reputation for truth and veracity; also evidence that she had admitted to others that she had had sexual intercourse with boys who lived in the neighborhood. On the other hand, evidence was introduced by the State in rebuttal, tending to establish the prosecutrix's reputation for truth.
As before stated, there are many assignments of error based on the introduction and refusal of evidence, the refusal to give instructions, on after-discovered evidence, and upon a prejudicial separation of the jury while the case was being *185 tried. We will not discuss all of them at length; those that are important will be considered.
The first point is that a card or drawing was introduced by Sam Lewis to explain his evidence, which purported to show the location of his house, the roads in the vicinity and the location of his neighbors' houses. It was not shown that the map or drawing was a correct one nor who made it. The argument is that it did not have on it one of the roads leading to Terra Alta, and it was objected to as evidence. The map, card, or drawing is not in the record. No doubt it was a crude paper, but as there was no dispute about the location of the roads and various houses, including the distances between them, we cannot see that the error, if any, had any bearing upon the issue. It was used by the witness to give to the jury a fuller understanding of a matter unimportant in itself. We do not see prejudicial error. It would have been better to have properly authenticated the drawing and its correctness by the maker.
The next point is that it was error to permit the mother to testify, in substance, what the prosecutrix told her on the following morning. After objections to the numerous questions propounded to her by the State's attorney and sustained by the court, the questions were asked: "What did you learn had happened?" Ans. "I learned he come and insulted her." Q. "What do you mean by insulted her?" Ans. "Sexual intercourse with her." Q. "Did you learn when that occurred?" Ans. "Yes, sir." Q. "When?" Ans. "On the day before; she told me." Defendant's counsel then moved the court to strike out the answers. The record is silent as to what action the court took. The evidence stayed in. Error is based on the answers which plainly tell the jury that the daughter told the mother that Dexter Friend, the defendant, had, on the day before, committed the crime; and it is reasonably clear that the pronoun "he" referred to defendant. She could have meant no other person. The general rule is that a witness for the State may state that the prosecutrix made complaint (after the commission of the offense and not as a part of the res gestae), but it is not permissible for the witness to state the person whom she implicated, *186
nor the circumstances of the act. It violates the rule against hearsay, and is generally regarded as prejudicial.State v. Peck,
Error is assigned because Dr. Harmon was permitted to testify that he made an examination of the genital organs of the prosecutrix on February 6, 1925, and that he found her hymen ruptured, because the time of the examination was too remote from the time of the alleged offense. To support this assignment 33 Cyc. 1471-2 is relied upon, which says: "If the examination is made at a distant time, and acts of intercourse with other men may have taken place, it is too remote, and such evidence is not admissible." To support the text State v.Evans,
Another alleged error is based on the refusal of the court to permit Dr. Rudasill to answer a hypothetical question relating to defendant's capacity for copulation. This witness had made an examination of defendant's sexual organs and found him afflicted with orchitis. One testicle had shrunken to about one-eighth and the other to about one-fourth normal size. He was asked whether, in his opinion, based on his examination of the sexual organs, and defendant's age and condition, defendant would be capable of having sexual intercourse in Nov. 1924. He was not permitted to answer, nor was he permitted to state his opinion as to whether defendant's condition as described existed on Nov. 22, 1924. It will be remembered that defendant said he had the mumps in the year 1921, which "fell on him" and destroyed his sexual desires and rendered him incapable of having sexual intercourse, a condition which had existed about four years. Another witness, Dr. John Thames, was allowed to answer practically the same questions propounded to Dr. Rudasill, and the former's evidence showed the same condition of the organs as found by the latter, with the additional fact that the penis was flaccid and small and showed diminution. Objection to his opinion as to defendant's power of sexual intercourse as of Nov. 22, 1924, was sustained, but the witness remarked that he could not answer that question anyway. The court then permitted him to give his opinion, and he stated that while atrophy of some of the organs would naturally affect others, it would at least lessen desire and lessen power of "election" and copulation. It is not perceived why one doctor would be permitted to testify and the other of equal qualification and experience be refused. The evidence proffered went to one of the two defenses relied upon. It *189
corroborated defendant's testimony. A witness who has qualified as an expert may give his opinion based on his own knowledge of the facts necessary for that opinion. Hanley v. Railway Co.,
Another alleged error is that the State was permitted to introduce and examine witnesses to disprove statements made by defendant's witnesses regarding the reputation of the prosecutrix for truth and veracity. Witnesses for the defense said her reputation was bad, and that they would not believe her on oath. They were asked the names of the persons who had told them her reputation was bad. The names were given. Then several of the persons so named were called by the State and they said they had never discussed her reputation with the defendant's witnesses; and, on the contrary, they said her reputation was good. This was not error. However, in at least two instances, rebuttal witnesses were permitted to say, over objection, that they had never discussed her reputation with certain State witnesses who, it appears, did not claim to have discussed her reputation with these rebuttal witnesses. For instance, Stephen Martin was permitted *190
to say that he had not told Virgil Bell (a defense character witness) that the reputation of the prosecutrix was bad, whereas, Virgil Bell in his evidence did not mention Stephen Martin as one with whom he had talked on that subject. No foundation was laid for the contradiction of Bell in that regard. The simple statement impels a conclusion of error.State v. Goodwin,
We now come to the instructions. Instruction No. 6 requested by defendant was refused. It relates to reasonable doubt, with the added proposition that it is not sufficient for conviction that the evidence creates a strong suspicion of guilt. The substance of this instruction, while not in the same terms, was covered by other instructions, and it was not error to refuse it.
Instruction No. 11, refused, would have told the jury that they might consider the time intervening between the date of the alleged offense and the date of the complaint made by the mother. It was properly refused. The girl made her complaint the next morning, and the delay of the parent in having the warrant issued would not affect the truth of her charge. She was of tender years and could not be expected to apply promptly for a warrant on her own initiative.
Defendant's instruction No. 13, refused, would have told the jury that they might consider the physical condition of defendant at the time of the alleged offense, and give such weight to the probability of lack of desire to have sexual intercourse, as they might from the evidence accord to it. Evidence was permitted as to his physical condition, impotency and incapacity for copulation, and it was pertinent to the issue. Where the evidence tends to support a theory of defense the prisoner is entitled to a proper instruction directing the jury's attention to the evidence and that it may be considered and given such weight as they may conclude it deserves. The proposition needs no citation of authority. State v. Wisman,
Instruction No. 14 was properly refused. It is based on the theory that the State's case rests on circumstantial evidence. The evidence was direct, and not circumstantial.
Instruction No. 16, refused, if given would have told the jury that if they believed from the evidence that defendant had proven an alibi they should find him not guilty. It is argued by the State that it was properly refused, because it was covered by the instructions on reasonable doubt. The law on instructions as to the defense of alibi is stated in 1 Blashfield on Instructions to Juries, page 696, Sec. 322, as follows: "It is the duty of the trial court to instruct on the law of alibi, and error to refuse such an instruction, when there is substantial evidence in support of the defense, or when the only defense is that of alibi, and the proof tends clearly to establish such defense, if not equivalent instruction on the subject is given". In some States it is held error for the court to neglect to give an instruction on the subject where the defense is an alibi, even though request for such instruction is not made. Holland v. State, 86 S.E. (Georgia) 739. See Arismendis v. State (Tex.Cr.App.),
The court properly refused a new trial on the ground of after-discovered evidence. The affidavit and evidence in support of the motion that there was documentary evidence, or a memorandum in writing, that defendant was moving his goods from Maryland on Nov. 22nd, was cumulative; and the affidavit of the father and brother of defendant that Lewis, the step-father had made overtures for suppression of the prosecution in consideration of money, showed want of diligence in procuring such evidence at the trial. The father and brother knew it.
The court did not err in holding that there has not been such a separation of the jury as would vitiate its verdict, the evidence being reasonably clear that defendant could not have been prejudiced thereby. We do not mean to relax the rule that there must not be a separation, for the presumption is that an irregularity of this character is prejudicial. The separation was unnecessary. The article the juror desired could have been easily procured by messenger; and such irregularities ought to be and are condemned and disapproved. But as there must be a new trial the point will not be further discussed, except to say that it is reasonably clear that the separation was not prejudicial.
Judgment reversed; verdict set aside; new trial awarded. *193