State v. Huffman

• Citation: 87 S.E.2d 541,141 W.Va. 55
• Decision Date: 31 May 1955
• Docket Number: No. 10706,10706
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, v. David Lee HUFFMAN.

Page 541

87 S.E.2d 541

141 W.Va. 55

STATE of West Virginia, v. David Lee HUFFMAN.

No. 10706.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1955.

Decided May 31, 1955.

Syllabus by the Court.

1. The indorsement on an indictment is not a substantive part of the indictment and it neither adds to nor detracts from the legal force of the averments in the charging part of the indictment.

2. The provision of Section 1, Article 9, Chapter 62, Code, 1931, that an indictment shall have legibly indorsed on its reverse side the name of the defendant is not essential to the identification and the authentication of an indictment; and that provision of the statute is not mandatory but is merely directory.

3. Though not a part of an indictment, the indorsement, when filed and recorded by order entered in the record book of the trial court is a record of that court which it may amend in accordance with the facts.

4. The authenticity of a letter may be proved by establishing the genuieness of the signature of the writer, but it is not essential to prove the handwriting of the author when the genuineness of the letter can be otherwise established.

5. Under proper facts and circumstances the authenticity or the genuineness of a letter may be established by indirect or circumstantial evidence without resort to proof of handwriting.

6. When the contents of a letter are of such nature that the letter could not have passed between any parties except the purported writer and the person to whom it was delivered, the letter is admissible in evidence under the rule that the authenticity or the genuineness of a letter must be established by proof of the handwriting of the author or by other proof of its genuineness.

7. A letter not shown to be in the handwriting of the person to be affected by it may sometimes be examined for internal evidence of the source from which it came and such evidence may be sufficient to render the letter admissible in evidence.

8. When it appears that two notes were received by the prosecuting witness purporting to have been written by the defendant, one of which the prosecuting witness testified she knew was from him, one of which began with the initials of her Christian name and surname and referred to a charge of rape which she had recently made against him, the actual facts concerning which were exclusively within their knowledge, the other of which contained statements which indicate that it was written while they were confined in different parts of the same jail and requested an answer from her, and both of which, urging her not to testify against him, were signed with the initials of the Christian name and the surname of the defendant and were written and delivered to the prosecuting witness within a short time after she had made the charge against him, the identity of the defendant, as the writer of the notes, is sufficiently established to render them admissible in evidence, at the instance of the State, upon the trial of an indictment against the defendant for the offense mentioned in one of the notes.

9. Whether the authenticity of a letter is sufficiently established to render it admissible in evidence is a matter largely within the discretion of the trial court.

10. The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.

11. The burden rests upon the State to prove the guilt of a person accused of a crime not merely by a preponderance of the evidence but by evidence sufficient to establish the guilt of the accused beyond a reasonable doubt.

12. In a criminal case a verdict of guilty which is without sufficient evidence to support it will be set aside by the appellate court.

13. A motion in arrest of judgment lies only for some error appearing on the face of the record which vitiates the proceedings.

Cleo S. Jones, John T. Copenhaver, Jr., Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for defendant in error.

HAYMOND, Judge.

At the January Term, 1954, of the Intermediate Court of Kanawha County the defendant, David Lee Huffman, was indicted for a felony by the grand jury attending that court. The indictment charged that the defendant, David Lee Huffman, during the month of December, 1953, in Kanawha County 'in and upon one Myrtle Lee Davis, a female person not his wife, violently and feloniously did make an assault, and her, the said Myrtle Lee Davis, then and there violently and against her will and by force unlawfully and feloniously did ravish and carnally know, against the peace and dignity of the State.' The indorsement on the indictment was signed by the foreman of the grand jury and by the prosecuting attorney of Kanawha County, but it designated the defendant as David Lee Hudson.

When the defendant was arraigned for trial on February 10, 1954, during the same term of court, he moved to quash the indictment because the indorsement contained the name of David Lee Hudson. The court overruled the motion and, at the instance of the prosecuting attorney, over objection and exception of the defendant, amended the indorsement by substituting the correct name of the defendant.

A demurrer of the defendant and his motion to quash the indictment were overruled and the defendant entered his plea of not guilty. By its verdict the jury found the defendant guilty of an attempt to commit the crime of rape. The court overruled the motions of the defendant to set aside the verdict and in arrest of judgment and, by order entered February 11, 1954, sentenced the defendant to be confined in the penitentiary of this State for a term of not less than one year or more than five years.

Upon writ of error to the Circuit Court of Kanawha County that court on July 27, 1954, affirmed the judgment of the intermediate court. To the judgment of the circuit court this Court granted this writ of error and supersedeas on November 15, 1954, upon the petition of the defendant.

On the night of December 17, 1953, the defendant twice visited a restaurant at 1222 East Washington Street in Charleston, known as the Kawash Cafe, where the prosecuting witness had recently obtained employment and asked her to go with him after the restaurant closed that night. A few minutes after midnight she left the restaurant to go to her room at the DuPont Hotel. The defendant, who was waiting for her on the opposite side of the street from the restaurant, met her and they walked together to the Charleston High School, which is located west of the restaurant in the same city block. The school building fronts on Washington Street and extends through the block to Lee Street. They walked on Washington Street to Brooks Street, continued on Brooks Street to Lee Street, entered the grounds of the high school from Lee Street, and descended a ramp which extends below the level of the street. There they remained for several minutes and during that time the defendant engaged in the acts and the conduct which resulted in the indictment.

After leaving the Charleston High School they continued to walk east on Lee Street, from Lee Street to Quarrier Street, and east on Quarrier Street to the corner of Quarrier Street and Elizabeth Street near the residence of the mother of the defendant. At that point the defendant called a passing taxicab which they entered and in which they rode together to the Capitol Hotel on Summers Street in a business section of Charleston. They went in the hotel, the defendant registered them as husband and wife, and they obtained a room in which they spent the remainder of the night and stayed until ten o'clock or elevent o'clock that morning when they left the hotel and went to a nearby restaurant called the Little Drake Inn on Summers Street where they had coffee.

The prosecuting witness then left the defendant at that place, went to the hotel where she had a room, got her clothes and returned to the Little Drake Inn. There she left some of her clothes. From the Little Drake Inn she went to the Kawash Cafe, quit her employment, and told her employer of the acts and the conduct of the defendant. Her employer advised her to inform the police and took her to the detective bureau of the city police department where she reported the matter to a city detective. Later that day the detective and another officer went to the Little Drake Inn where they got the clothes she had left there, to the Charleston High School where they found her pen, and to the Capitol Hotel where they found her brassiere. While at the detective bureau, using the name of Dorothy Jones, she signed a complaint against the defendant on which a warrant for his arrest was issued.

After the prosecuting witness left the Little Drake Inn the second time the defendant, expecting her to return to meet him, waited for her there for sometime, then left and returned about three o'clock, learned that she had not been there, left again and returned a second time about five o'clock. At that time he was informed that officers had been there and had taken her clothes. He then went to the home of his grandparents, where he learned that a warrant had been issued for his arrest, told them and his mother that he was leaving, obtained some money from them, and travelled by bus to Beckley where he was arrested about eleven o'clock that night. The following morning he was brought back to Charleston and apparently placed in jail. At the time of his arrest he was on probation in connection with a prior conviction of a misdemeanor.

As the record discloses that the acts and the conduct of the prosecuting witness and the defendant, from the time they first met on Washington Street until they got in the taxicab and from the time they entered the hotel room until they went to the Little Drake Inn later that morning, are actually known only to...