77 W. Va. 635 | W. Va. | 1916
Defendant was convicted and sentenced to two years’ confinement in the penitentiary for an attempt to commit a rape, upon an indictment charging him with actual rape. He assigns as erroneous the admission of record evidence of a former conviction for a similar offense, the rejection of evidence affecting the chastity of the prosecutrix, and misdirection of the trial jury.
The rulings on evidence we can not consider. They were not made the subject of separate bills of exception, nor embodied in the motion for a new trial. Either course would have sufficed. The omission of both is fatal, notwithstanding all the testimony was made part of the record by a general bill of exceptions. Repeated decisions of this court upon the necessity of such procedure, and the consequences of failure to observe it, seem to render superfluous citation of the cases. But see State v. Henaghan, 73 W. Va. 706; Railroad v. Brown, 74 W. Va. 159; Stewart v. Parr, 74 W. Va. 327.
Though correct in principle, instruction number 9 refused and number six given substantially state the same general legal proposition. But the former is erroneous in saying the only evidence of guilt was testimony of the prosecutrix.
As the proof, though meager, sufficiently showed guilt, the court did not err in entering judgment on the verdict of the jury: AYherefore the judgment is affirmed.
Affirmed.