61 W. Va. 697 | W. Va. | 1907
Paxton Grove, seeking relief from a judgment of the circuit court of Greenbrier county, sentencing him to imprisonment, for a period of seven years, on a conviction of the crime of rape, assigns a number of errors in the rulings of the court.
By a demurrer and a motion to quash, he challenged the sufficiency of the indictment, which charged him, together with three other persons, with having unlawfully combined, conspired, confederated and agreed to assault, ravish and carnally know one Nora Breeden, by force and against her will, and with having unlawfully anc[ feloniously, in pursuance of such agreement and conspiracy, assaulted, ravished and carnally known, by force and against her will, the said Nora Breeden. The objection to the indictment is that it charges a conspiracy under sections 9 and 10 of chapter 148 of the Code, known as the “Red Men’s Act,” and also rape under section 15 of chapter 144 of the Code. An indictment charging conspiracy and murder, very similar to the one here under consideration, in respect to the matters relating to conspiracy, was held good in State v. McCoy and others, decided by this Court at the present term. This indictment does not purport to have been found under the “Red Men’s Act.” The purpose of that statute was to create new offenses. A conspiracy to inflict any sort of punishment or bodily injury was made a misdemeanor, and the infliction of any sort of punishment or bodily injury in pursuance thereof was made a felony. This statute contemplates punishment, or injury not felonious under other statutes or by the common law. This indictment does not charge a conspiracy to inflict punishment or bodily injury in general terms. It charged a conspiracy to do that which, by the common law, as well as by our statute, is a felony. In the commission of that offense, a conspiracy may be involved and included, not as the substantive offense, punishment for which is sought, but as a ground or means by which some of the parties charged with rape may be convicted. A good illustration of
A motion in arrest of judgment was based upon alleged want of an issue made up on the record. The order shows that the defendant entered his plea of not guilty and then says: “The Atty. for the State doth the like and issue was thereon joined.” The contention is that this brings the case within the decisions in State v. Douglass, 20 W. Va. 770,
It is necessary to the disposition of certain assignments of error, relating to the admission of evidence, concerning the acts and declarations of some of the parties jointly indicted, to disclose here some of the material facts which the . evidence tends to prove. The prosecutrix, together with a man named Hunter Merica, alighted from a railway train at the station at Eonceverte near midnight. They claimed to have eloped from some place in Page county, Yirginia, intending marriage. All the hotels in Eonceverte being full, so they could obtain no lodgings, they remained in the waiting room of the station. The prisoner was the yard master of the railway company at that place, having charge of the entire yard. He, together with the persons indicted with him, having become aware of the purpose intended by the prosecutrix and her companion, and having observed •their peculiarties and suggestive conduct, became active and interested respecting them. They were seen in conference
The prisoner having testified in his own behalf, a number of witnesses were called to impeach him, among whom was one Robert Smith, who, upon his examination, said he was acquainted with the reputation of the prisoner in the community in which he resided, and that it was bad, and was then permitted to say that, from his general reputation, he would not believe him on oath. That this was improper testimony cannot be doubted. The prisoner had not put his character in issue and the State could not, for that reason, attack it. As the basis for impeachment, bad reputation for truth and veracity .only was admissible.
Two instructions given at the instance of the State are complained of. One of these is challenged because it tells the jury they may convict without finding there was a conspiracy. As it is plain, from what has been said, concerning
The prisoner requested an instruction to the effect that if a woman consent to sexual intercourse with a man, the latter is not guilty of rape, even though she consented through fear, unless it was fear of death or great bodily harm. The court having refused to give this, the words “great bodily harm,” were changed “to serious bodily harm” and-the court was again requested to give it but refused. Then the court struck out the word “serious,” making it read “bodily harm,” and gave the instruction as so modified.
This instruction fails to distinguish between that class of cases in which reasonable ground to fear death or great bodily harm, justifies or excuses the act of one having cause for such apprehension, in doing that which, if done under other circumstances, would be a criminal act; and the class of cases in which the act done is, or may be, attributable to mental duress, from whatever cause it may have resulted. The two propositions are widely different. In the former, the actual mental condition is not the vital fact; in the latter it is. Fright or terror, so intense as to dethrone reason, for the time being, no matter what particular injury is feared, makes void any consent obtained thereby; and he who takes or obtains a liberty or other thing thereunder cannot thereby justify or excuse his doing so, if by any means, he produced that state of mind for the purpose of obtaining it. As the true inquiry was not the nature of the injury feared, nor the particular ground of fear, but the actual mental condition of the prosecutrix, respecting her power to act voluntarily, or give her consent to the act of the prisoner, the instruction requested unduly narrowed the range of inquiry, allowed to the jury by the law, and the court did not err in refusing it. As modified by the court and given, it could not
As the judgment must'be reversed, for the errors noted, the ruling of the court on the motion to set asi le the verdict, and the motion to quash the panel of the jurors, for the alleged want of a venire faeias, will not be reviewed.
The judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed.