74 W. Va. 772 | W. Va. | 1914
Convicted of the crime of rape and sentenced to imprisonment in the penitentiary for a period of fourteen years, Wilson complains of the judgment, assigning error in numerous rulings of the trial court.
According to the testimony of both the prisoner and the prosecution, the former had carnal knowledge of the latter in such manner and to such extent as to constitute the crime of rape, provided it was not done with the consent of the prosecutrix. Whether there was such consent within the meaning of the law, was the vital question in the case. There were no eye witnesses to the transaction between the parties, save the actors themselves, and what transpired depends largely upon their oral testimony. ' The State relied upon certain physical injuries found upon the person of the prose-cutrix, shortly after the transaction, as circumstances and facts tending to corroborate her testimony. There were bruises on her arm, one leg and the back and rupture and inflammation of the private parts. ’The prisoner resisted this effort to corroborate, by testimony tending to show the nonexistence of all the bruises, except one, at the time of an examination made by a physician, soon after the complaint
The rejection of expert testimony of two medical witnesses, offered for the purpose of proving the physical effect of a-nervous shock generally incident to such an experience as the prosecutrix claims to have undergone, and the outward manifestation thereof and the period of time during which such manifestations would likely continue, is a subject of serious and earnest complaint. To sustain this ruling, the learned judge who tried the case relied upon People v. Royal, 53 Cal. 62, but the ease is not in point. The court disapproved opinion evidence of force in that case, because it was founded upon actual, positive evidence of solicitation and nothing more. The ruling is equivalent to an adjudication that a witness will not be permitted to say white is black, or that certain conduct having a recognized character in fact and law may be regarded as something different. Cook v. State, 24 N. J. L. 843 involved a question nearer in character to the one here presented. The question there rejected as improper was, whether a woman placed in the situation described by the prosecutrix would be more likely to swoon or to be nerved to unusual strength. The court rejected it upon the following considerations: “The express testimony of a witness cannot be impeached by a mere opinion that the fact stated is likely or unlikely. It is apparent, moreover, that the question, as propounded, was not susceptible of a rational answer. Women of different nervous temperaments, would, in a given situation, have acted differently, and the same woman, under one state of health or nervous excitability, would act very differently from what she would under another. ’ ’ It will be observed that this question was intended to elicit an opinion as to what a person would likely do under certain circumstances, in contradiction of what the witness said she had
Exception was taken to the action of the court, in its refusal to permit a medical witness to answer, on cross-examination, a question as to whether or not certain physical injuries, to the existence of which he had testified, might not have been the result of voluntary, as well as involuntary, action. This exception is not well taken. The witness had not expressed any opinion as to what had caused the injury. Had he done so, the question would have been proper on cross-examination. Taking this view, the court properly accorded the prisoner the right to introduce the testimony of the witness as his own. The evidence was not excluded. It was voluntarily withheld because the court would not admit it as part of the cross-examination.
Instruction No. 3, given by the court, in detailing facts and circumstances proper for jury consideration, included scratches or absence of scratches or marks of violence on the face or person of the defendant and an inquiry as to whether or not any of the clothing of the prosecutrix was torn. There is no evidence of any marks of violence upon the defendant or any torn clothing of the prosecutrix. I think it was improper for the court to submit inquiries of that sort, though my associates do not concur in this view. The impropriety of submitting inquiries as to matters having no foundation in the evidence has often been declared by this court. Kuyke
Instructions Nos. 5 and 7, given at tbe instance of the State, both advised the jury conviction could be had upon the uncorroborated testimony of the prosecutrix, if from it they believed beyond reasonable doubt, the defendant was guilty. Notwithstanding this, the court gave instruction No. 6 reading as follows: ‘ The court instructs the jury that in the case of rape, it is not essential that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular -act constituting the offence, and if the jury believe from the testimony of the prosecutrix and the corroborating circumstances and facts testified to by other witnesses, that the defendant did have carnal knowledge of the prosecutrix by force and against her will as charged, the law would not require that the prosecutrix should be corroborated by other witnesses as to what transpired at the immediate time and place when it is alleged the assault was made. ’ ’ The instruction assumed the existence of corroborative facts and circumstances, although almost every alleged circumstance relied upqn for corroboration was put in issue by the evidence. Indeed, every one was in some form. The giving of the other two instructions in this connection, and the request therefor on the part of the State, impliedly admit such facts and circumstances were in issue, since the instructions authorized a verdict upon the uncorroborated testimony of the prosecu-trix. The addition to instruction No. 6, of its assumption, in terms, of the existence of such facts may have been accepted by the jury as an intimation by the court that some corroborative circumstances or facts had been established by the evidence, and as meaning that the jury might find the defend-ant guilty upon the uncorroborated testimony of the prosecu-trix, or, upon her testimony corroborated by facts and circumstances assumed in the instruction. A similar assumption ill an instruction given in State v. Allen, 45 W. Va. 65, was the real ground of reversal of the judgment, in that case. In the opinion, another error is noticed, but the court passed
The exception to instruction No. 8, relating to the reasonableness of the time within which the prosecutrix made her complaint, told the jury they could take in consideration her situation, her associations and all of the surrounding circumstances. Its sufficiency is challenged because of its omission to recite the time within which complaint was made. The exception is not well taken. The public accusation was not made for three or four days, but the evidence proves disclosure by the prosecutrix to members of her family on the evening of the day of the transaction.
.The form of instructions Nos. 3 and 4, asked for by the defendant and refused by the court, justified the ruling. They would have told the jury that, if upon the whole evidence there was a reasonable hypothesis consistent with the defendant’s innocence, they should find him not guilty. This rule is applicable only in the cases in which the issue depends in whole or in part upon circumstantial evidence. Part of the evidence in this case is circumstantial, but not all of it, and the instructions were not limited to the portion thereof that is circumstantial. They might have been proper, if they had been so limited. In so far as the guilt or innocence of an accused person depends upon the truth of oral testimony, the jury could always find an hypothesis consistent with the prisoner’s innocence, in the incredibility of the witnesses for the State. This suffices to show inapplicability of the rule to that sort of testimony, and the necessity of confining its operation to so much of the evidence as is circumstantial, or to so much of the case as depends upon the circumstances, or the whole case in so far as it depends upon circumstantial evidence. Neither in substance nor form are these instructions or either of them similar to those approved in State v. Lewis, 69 W. Va. 472, Stale v. Flanagan, 26 W. Va. 117 and numerous others which need not be cited.
As the subject matter of instructions Nos. 8 and 10, asked
Instruction No.. 14, asked for by the prisoner and.refused, would have told the jury that, if they believed from the evidence the only evidence tending to prove the guilt of the accused was the testimony of the prosecuting witness and that her testimony on any material point was untrue, they were at liberty to disregard her whole testimony. Such an instruction was approved in State v. Perry, 41 W. Va. 641, but its form, as there given, has been disapproved in State v. Musgrave, 43 W. Va. 672; Ward v. Brown, 53 W. Va. 229 and State v. Clark, 64 W. Va. 627. Moreover, as given the Slate v. Perry, it was a departure from the rule declared in. State v. Thompson, 21 W. Va. 741. Hence we think it was properly refused.
Instruction No. 15, asked for by the defendant, was properly refused because it assumed a state of the evidence contrary to that -disclosed by the record. The witness in testifying to her resistance, gave facts and details thereof. The instruction assumed she did not do so.
On a motion to set aside the verdict on the ground of disqualification of certain jurors by reason of prejudice,, considerable evidence was taken to prove that Thomas-West Jr., one of the jurors who sat in the case, had declared his belief in the guilt of the prisoner prior to the date of the trial. Two witnesses testified to such declarations, but he most emphatically denied the statements imputed to him. He was positive he had not mentioned the Wilson case to one-of them, and, as to the other, he gave the conversation he had with him, in detail, denying positively any expression of opinion on his part and saying the witness who made the charge against hiih had vehemently expressed his own belief in the innocence of the prisoner. Having seen these witnesses and heard their statements, the trial judge was better qualified to determine the question of veracity between them than we are. The other juror did not sit in the case. He had been one of the panel of twenty but had been stricken off. Nobody testified to his having expressed any opinion on the merits of the
The motion to set aside the verdict as being contrary to the law and the evidence was properly overruled. It was not the province of the trial court, nor is it ours, to say whether the accused is guilty. This court cannot relieve innocent persons, under conviction of crime, unless the state of the evidence is such as to bring it within the rules authorizing courts to overthrow verdicts. When a verdict stands upon conflicting oral evidence, involving only credibility of the witnesses, the verdict cannot be disturbed, provided the affirmative evidence, if true, establishes the fact in issue. 'When the issue raised by the conflicting oral evidence is determined one way or the other by controling facts proven beyond question or admitted, and the verdict is contrary to such facts, fhe court may set it aside and should do so.
Here the positive evidence of the prosecutrix is that the accused forcibly dragged her out of a buggy and outraged her, while she resisted to the uttermost. She says she screamed or attempted to and he placed his hands over her mouth. Once she got loose and ran and he again caught her. She thinks she screamed, while running, but does not remember whether she did or not, nor how far she ran. When down on the ground she tried to push him away with all her might, but he held her hands. Could he prevent her fro'm screaming while overcoming her? Who knows?- Say it is possible or likely he could not, if she tried, but such possibility or even probability is not conclusive. May she not, when loose and running, have lost her voice, for the moment, by reason of terror? Can it be supposed she was in the full possession of all her mental powers and capable of deliberating and
A verdict cannot be set aside merely because it is, in the opinion of the court doubtful, or the judge, if a juror, would have come to a different conclusion. It must be manifestly, clearly wrong. State v. Sullivan, 55 W. Va. 597; State v. Bowyer, 43 W. Va. 182; State v. Morgan, 35 W. Va. 277; State v. Cooper, 26 W. Va. 338; State v. Donohoo, 22 W. Va. 761; Vaiden’s Case, 12 Gratt. 717. The principle asserted in Harvey v. Com., 103 Va. 854, Clark v. Reindyk, 9. Cranch, 153 and Bowden v. Johnson, 107 U. S. 251, is recognized by this court, but the question here is its applicability. In the Harvey case, no complaint was made for nearly nine months after the alleged outrage and after the pregnancy of the woman was beyond question and the exposure of her secret was imminent and certain. The offense was alleged to have been perpetrated on a public highway where people were likely to pass at any moment. Yastly different are the circumstances of this case. Of course, as held in the other two
I do not say the accused is guilty. That is not my province. It was for the .jury to say whether he is or not, but the trial court should have properly submitted the question to the jury. In'a case of this kind, involving life and liberty and in which every vital element of the offense is involved in a conflict of evidence, the rules governing the trial should be strictly adhered to. They have not been, and the errors give rise to presumptions of injury and prejudice not overcome by anything the court can see in the evidence, wherefore I would reverse the judgment and grant a new trial. I would base such action particularly upon the giving of instruction No. 6 at the instance of the state and on No. 3 given by the court on its own motion.
My associates, however, being of a different opinion and constituting a majority of the court, affirm the judgment.
Affirmed.