83 W. Va. 409 | W. Va. | 1919
Complaining of a judgment of conviction and sentence for confinement in the penitentiary for ten years for incest, Loring Rice assigns as erroneous rulings upon the admissibility of evidence offered in his behalf and rejected, the giving of instructions for the state, the refusal of instructions propounded by him, and the denial of his motion for a retrial predicated upon these grounds.
The only witness who testified to the criminal assault was defendant’s daughter, Pearl, who at the time of the commission of the several acts of sexual intercourse was twelve to fourteen years old. Her testimony in chief was direct, positive and unequivocal. Defendant offered but was not permitted to prove by W. C. Kelley, a member of the grand jury that returned the indictment, that upon her examination as a witness before that body she testified that W. W. Irvin, her mother’s brother, who also was indicted on her
For some purposes, it is true, as remarked by the judge of the trial court, grand jurors cannot be required or permitted to divulge what occurred during an investigation of matters properly committed to them under the usual charge, especially where as in some jurisdictions they are sworn to secrecy. The action of no member of such inquisitorial body can lawfully become the subject of inquiry, nor can he be interrogated with respect thereto. State v. B. & O. R. R. Co., 15 W. Va. 362. Nor can the sufficiency of t]je proof be inquired into to invalidate an indictment found by a lawfully constituted grand jury. Wadley v. Com., 98 Va. 803.
There is in this state and in Virginia no statutory provision, general rule of law, procedure or custom requiring an oath of secrecy to be administered to members of a grand jury. Section 5, eh. 157, Code, prescribes the only form of oath required in impaneling such a jury. The question of the competence of a grand juror, when interrogated as was the witness Kelley in this case with reference to the testimony of 'ihe prosecutrix, was raised for the first time in Virginia in the case of Little v. Com., 25 Gratt. 921, and, thorigh not made a point of the head notes or of the decision, because not necessary therefor, the opinion clearly discloses the view of the court to be to sustain such proof as competent. For it is there said that the trial court erred in refusing to permit .Dearmont, who with others returned the indictment, to state the testimony of a witness examined by them touching the matter under investigation. The same
Other assignments relied on for reversal likewise relate to proof offered by way of contradicting the prosecutrix as to sexual intercourse between herself, her uncle and defendant, and to interrogations propounded to her on cross-examination touching the subject, which the court refused. Besides Kelley,' the witnesses introduced by defendant to lay the ground for impeachment were Posten, the justice before whom she appeared March 17, 1917, and by a complaint, duly verified by her own affidavit, a copy of which with the verification is copied into the record, charged her ■uncle, William W. Irwin, with having' had sexual intercourse with her in 1916, and others to whom she is alleged to have disclosed the assault upon her. This evidence the court should have permitted defendant to submit to the consideration of the jury for the purpose disclosed by his counsel, not because it necessarily would establish the innocence of the accused, an effect not claimed or pretended, but as affecting her credibility, a fact as to which the jurors were the sole judges.
There could not well be a more obvious similarity between the facts and issues and the impropriety of the rul-. ings made in this case and those involved in State v. Koch, 75 W. Va. 648. The defendants were charged with the same offense. The accusations were made by daughters, to each of whom a child was born, and its paternity was
(2) “Where on such trial the daughter, as prosecutrix,_ is permitted to give in evidence to the jury the fact of the birth of her child and to imp.ute its parentage to her father, she is subject to cross-examination thereon, and it- is error to deny defendant the right to such cross-examination, and, the foundation being laid therefor, she is liable also to be impeached by showing that she has made contradictory statements in relation thereto on other occasions.”
The attorney general has undertaken to defend the action of the court on the ground of an alleged defect in the form of the interrogatories. As to some but not all of them this criticism may properly apply. Excluding the latter, however, there remains enough to warrant reversal for the errors pointed out, certainly as to the foundation for the questions propounded to Posten.
Counsel for defendant complains of the state’s instructions Nos. 2, 9 and 13, and the refusal of his instruction No. 11. It is difficult to perceive or infer the purpose of No. 2. The jury, of course, is limited to the evidence in the case and cannot go' beyond it in ascertaining the guilt or innocence of the defendant, as that instruction and the oath administered told them. But the reason or purpose for telling them not to “consider the, statements of counsel as to alleged facts or as to supposed facts as evidence” seems obscure. No basis therefor is disclosed, unless it rests upon the statements of counsel as to what he proposed to prove by the witnesses whosé testimony was,not allowed to go to the
The objection urged in argument to instructions Nos. 9 and 13 are that as the evidence showed sexual coition before the proxecutrix attained the age of fourteen, the defendant was guilty of rape, not incest; and that as her testimony was unreasonable and uncorroborated, he could not properly be convicted. Clearly neither ground is tenable. A relative of the prohibited degre may be guilty of both rape and incest. Nor will age and lack of corroboration excuse a defendant charged with criminal assault upon a female, according to most authority, the weight and credibility of the testimony being a question exclusively for the jury (11 Enc. Dig. Va. & W. Va. Rep. 629), except in rare cases, as in Harvey v. Com., 103 Va. 850, where the defendant charged with rape was seventy years of age, and the assault was not discovered until after the birth of the child, and the evidence bore the impress of falsehood.
Other instructions, both those given and refused, we have examined so far as deemed necessary to avoid error upon the retrial we are compelled to award, and see no reasonable objection thereto, unless it be defendant’s No. 11, which was not given apparently because of its similarity to an instruction given at the request of the state on the same subject, namely, the weight the jury should give to the testimony of the defendant himself. Ordinarily a defendant properly may demand an instruction couched in his own language, if aptly drawn, intelligible and pertinent, though the state may have asked and the court granted a similar one upon the same subject. However, as appears to be the case, the form and effect of the two instructions substantially em
Judgment reversed, verdict set aside, remanded.