90 W. Va. 272 | W. Va. | 1922
Tbe defendant was convicted of an attempt to commit a rape on Viola Adkins, and, on the 3rd day of February^ 1921, was sentenced to confinement in the penitentiary for three years, and he now presecntes this writ of error.
Defendant is a negro boy about 22 years of age and for several years prior to the indictment 'had been working for the white people on their farms in the neighborhood where the alleged offense was committed. At one time prior thereto he had worked on the farm of the husband of the prosecutrix. Several witnesses, men prominent in the community, testified that he was of an especially law abiding disposition and had never been in any trouble before; that he had lived many years in the community, had worked for them and others, was respectful .to their families and was peaco^ able, quiet, inoffensive and of good character. The prose-cutrix, Viola Adkins, testified in substance, that on the 29th of October, 1920, when her husband was away from home and at the city of Ronceverte, defendant came to her house, and, after some conversation concerning the whereabouts of her husband, he went into the house and sat down by the fire, whereupon she followed him into the house and ordered him to go away. He then informed her that he had three polecat hides he desired to sell to her husband but she told him that she did not want to purchase and again ordered him to leave the house. As she started out of the kitchen with the intention of going out of the house, he remarked that he liked white women better than he did colored women and caught her as she passed, but she broke away from him and got opposite the “meal room” door when he again caught her. She again broke away from him and told him she would have him arrested and to get away from there “quick.” After getting out of the house, being followed by the boy, she again told him to leave the premises but he then insisted that he desired to sell the polecat skins and made a proffer to sell them for 50c, or that he would sell them to her “for a little.” She again told him to leave but he replied that he was hungry and wanted a piece of bread, or wanted some matches as he desired to take a smoke, and
There are two grounds of error relied upon: (1) That the evidence is not sufficient to prove an attempt to commit rape; (2) that the court erred in permitting the husband to detail the conversation which he had with his wife six hours after the alleged offense, in which she gave the particulars of the alleged crime.
We do not deem it necessary or proper to pass upon the first ground of error, inasmuch as we have concluded to reverse the judgment of the lower court and award a new trial. We are of opinion that the second ground of error is well taken.
It is well settled by the great majority of decisions and by the text writers that it is error to permit a witness to whom the prosecutrix has detailed the particulars of a crime of this character to repeat to the jury what she said in relation thereto, especially where the witness details the particulars of the occurrence. In a few of the jurisdictions the details of the complaint are held admissible for the purpose of corroborating the prosecutrix, but, as above stated, the great weight of-authority is that any person to whom she has made
Reversed and remanded.