45 W. Va. 767 | W. Va. | 1899
Lead Opinion
On the 13th day of September, 1898, Grant Hull was indicted in the circuit court of Berkeley County, for the crime of rape, charged to have been committed upon one Ella May Glessner.’ The plea of not guilty was interposed, and on the ,16th day of September, 1898, a jury was sworn in the cause. On the 17th of the same month they found the prisoner guilty as charged in the indictment, but recommended that he be punished by confinement in the penitentiary, and, thereupon, the prisoner moved the court to set aside the verdict and grant him a new trial, which motion, after consideration, was, on the 4th day of October following, overruled ; to which action of the court the prisoner by his counsel excepted, and moved the court to set aside the evidence. Judgment was rendered upon the verdict, and the prisoner was sentenced to seven years’ confinement in the penitentiary; and thereupon the prisoner applied for, and obtained, this writ of error. The errors relied on by the prisoner are as follows : (1) The circuit court should have set aside the verdict on the ground that the corpus delicti was not sufficiently proved. (2) The circuit court admitted improper testimony, against the objection of the defendant, materially prejudicial to the defense, and for this, on motion, should have set aside the verdict. (3) The circuit court should have set aside the verdict of the jury, and awarded the defendant a new trial, on the ground that the virdict was against the clear preponderance of the evidence.
Following the testimony of this prosecuting witness, she says: “I met Grant the first time after leaving the house at Hedges’ orchard, I went catty-cornered through the cornfield to the road, and Grant was in the road where it runs to the woods. The summer before this, Grant came down to Mrs. Hayes’, and asked me if I could go up with him. He took me up through Ropp’s woods, and tried to do the same thing. I hollered, and my mother came running up. He gave me a quarter, and I gave it to my mother.” Now, when we turn to the testimony of Mrs. Grant Hull, she says: “I have heard the story of what Ella says happened a year before this occurrence. It is not true, nothing of the kind ever happened. I never heard anything of this kind.” This witness says she told Mrs. Hayes about two months afterwards, but Mrs. Hayes, when on the witness stand, does not confirm her. Now, it is apparent that this story, which was brought out on cross-examination, was fabricated and detailed to account for the remarkable conduct on her part, which was described by her in detailing her evidence in chief. She says: “I met Grant near the end of Hedges’ orchard. He was in the road. I shook hands with him, and give him good-bye, and asked him over. That was a field and a house distant from Grant’s house. He said, ‘All right’; he
Coming next to the story this witness tells of what transpired in McDowell’s woods, can you say it bears the impress of truth? She says: “He says, ‘Come here!’ and Isays, ‘No, sir.’ I told him I must go home. And he. walked up, and caught me by the arm, and says, ‘Come up here in the woods; I have something pretty to show you.’ And I says, ‘No, sir.’ And so he took me up in the woods, and done what he pleased. He caught hold of my dress sleeve, and pulled me along.' I pulled and tore my dress sleeve. I hollered ‘murder!’ I jerked, and tried to get away from him, but he would not let me go. * * * He was about half an hour doing it. He just took and done what he pleased, and he tore all my underclothes.” Now, that this story was neither true nor well considered is apparent when we recur to the fact that she left the house of prisoner at four o’clock and twenty-five minutes. Mr. John D. Smith, in his testimony, says: “We left Spring Mills about five o’clock in the evening. She [Ella May] met us about one hundred yards below the cross roads at Spring Mills. We had started without her, and she met us.” From Grant Hull’s to Spring Mills, according to the testimony of Hunter Harlan, is one mile and a half, and the witness Decatur Hedges calls it two miles. It is a matter of common observation that a person walk
The logical conclusion resulting from this train of circumstances is that, while it may be true that some time previous to the finding of this indictment Ella May Gless-ner may have been robbed of her priceless jewel, it was not on Sunday evening, July 24, 1898, on. her way from the house of the prisoner to Spring Mills. If the subsequent conduct and actions of this girl were inconsistent with the charge contained in the indictment, what must we say of the testimony of a negro boy, — Peter Johns? In looking at this testimony, we must not only take into consideration what any sane man who had been guilty of such an offense would have said or done under like circumstances, but we must look at the character and reputation of the prisoner, as appears from the testimony of the Presbyterian minister and five others. They all testify as to his being an honest an upright man. Also the statement of
We come next to the consideration of the testimony of Dr. D. R. Ross, who testified that he “had occasion to examine Elía May Glessner on the 31st day of August, 1898.” He says: “My examination was to determine whether an assault had been made upon her person. I found evidence of recent cohabitation, and that she had been injured by it. The parts were still swollen and conjested, and very tender. I found no other marks of violence. She was about a half-developed girl. The hymen -was destroyed. That is all I know.” On cross-examination he. said: “There were no marks upon her except about her private parts. The indications were that several days, — three or four, at least — had elapsed since she received the injuries, as there was some sloughing. I could form'no idea how long previously her virginity had been destroyed. It was evident that the injuries would not have happened to a person habitually accustomed to intercourse. The internal inj uries would have been the same whether the intercourse was forced or by consent.” On re-direct examination, and over the objection of the prisoner, this witness testified as follows: “I do not believe that any gild would have voluntarily submitted to the suffering necessary to have brought
* * * But Starkie lays it down further that when the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled witnesses is not admissible; and he is unquestionably right in this position.” We also find the law thus stated in Starkie, Ev. (9th Ed.) p.755. “An expert cannot be asked to give his opinion upon doubtful facts in the case on trial which remain to be found by the jury, but a similar case may be hypothetically put to him, based upon the evidence insuch case.” This Court held in the case of State v. Musgrave, 43 W. Va. 673, (28 S. E. 814, syl. point 5): “The subject of all questions of experts should be to obtain their opinion as to matters of
Counsel for the prisoner cite the case of Noonan v. State, 55 Wis. 258, (12 N. W. 379), which, in point of facts, closely resembles the case under consideration, which-is quoted from in the brief as follows: “A medical witness, called on behalf of the state, who made an examination of the prosecutrix several days after the rape was alleged to have been committed, testified that on such examination he found an aggravated inflammation of the uterus, vagina, and other sexual organs of the prosecutrix. He was then allowed, under objection by the plaintiff in error, to testify that, in his opinion, such inflammation was produced by her having connection (a violent, not a free, connection); that is in substance and effect, that the inflammation was the result of rape, which had been committed upon her. The testimony here qnoted was given in answer to the questions put by judge: “To what do you attribute the inflamed condition that you say you found? And the question was duly objected to, and exception thereto taken. The question and the answer which it elicited were clearly incompetent. The witness was competent to state what effects might result from a rape, but it was going far beyond the range of authorized expert testimony to allow him to give an opinion that the inflammation he discovered was produced by rape. On the cross-examination this witness was constrained to admit — what any person of ordinary intelligence knows without the aid of expert testimony—
Now, without attempting to recapitulate the testimony, my conclusion is that its character is not such as to establish the corf us delicti. Bearing in mind the language of Lord Hale, who, in speaking of rape, says: “It must be remembered that it is an accusation easily made, but difficult to be disproved by the party accused, be he ever so
I am also of opinion that the court erred in allowing said medical witness, after stating that the result would have been the same whether the intercourse was forced or by consent, to testify that he did not believe that any girl would have voluntarily submitted to the suffering necessary to have brought about this result. Was the prisoner prejudiced by this ruling? In State v. Musgrave, supra (Syl. point 9), this Court held that: “Where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudiced such party; and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for the reversal of the judgment, but, if it clearly appear that it could not have changed the
Concurrence Opinion
(.concurringj:
I agree to the syllabus. I agree that a new trial be granted for the admission of improper evidence. But I do not agree to all that part of Judge English’s opinion holding the evidence of the State’s witnesses unworthy of credit, and holding that the corpus delicti is not proven. I do not think we ought to pass on the evidence, and thus disparage and destroy the State’s case in advance of a new trial. What is the use of a new trial with the State’s evidence condemned in advance? My position is that that part of Judge English’s opinion sets a bad precedent for this Court. I hold that where this Court reverses for the admission or rejection of evidence, or for giving or refusal of instructions, or on any ground other than the weight or credit of evidence, we should not pass on the weight or credit of evidence, but remand the, case for a new trial without influence from an opinion of this Court branding and condemning the evidence as not worthy of credit. The evidence may not be the same on another trial; other evidence may be brought in; and, if we brand the evidence, it necessarily discounts the effect of the old evidence. Need I cite cases to show that the jury is almost uncontrollably the judge of the credit of the witnesses? Yet Judge English makes a jury out of this Court, and makes us brand witnesses as false whom twelve sworn jurors and a judge believed, when they saw the witnesses, and enjoyed great advantage in passing on their evidence, which we do not possess, which Judge English said gave them better capacity to judge than wé. Sigler v. Beebe, 44 W. Va. 592,
Note by
I concur in the result reached in this case and the syllabus, but dissent from that portion of Judge English’s opinion that passes on the credibility of the witnesses, as this is an invasion of the province of the jury. See Akers v. De Witt, 41 W. Va. 239, (23 S. E. 669).
Reversed.