State Of West Va. v. Coram

• Decision Date: 15 October 1935
• Docket Number: (No. 8209)
• Citation: 116 W.Va. 492
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Thomas Coram

116 W.Va. 492

State of West Virginia

v.Thomas Coram

(No. 8209)

Supreme Court of Appeals of West Virginia.

Submitted September 24, 1935.

Decided October 15, 1935.

1. Criminal Law

Statements by a participant in a transaction are admissible as part of the res gestae, if spontaneous and made while under the influence of the transaction itself.

2. Criminal Law

Where a participant in a transaction is incompetent to testify, her statements may nevertheless be admitted as original evidence, if made under such circumstances as to constitute part of the res gestae.

3. Rape

An assault with intent to rape is a specific crime consisting of an intent to have the male sexual organ penetrate that of the female at least to some extent, and of an overt act in pursuance of that intent which fails. Intent to produce emissio seminis and actual production thereof through external contact with the female, without intent to penetrate, does not constitute this crime.

4. Rape

Intent to rape cannot depend on mere speculation, but must be clearly shown.

Error to Circuit Court, Wood County.

Thomas Coram was convicted of attempted rape, and he brings error.

Judgment reversed; verdict set aside; new trial awarded.

Maxwell, Judge, dissenting.

Wm. E. Chilton, Sr., T. M. Mclntire and Eugene T. Hague, for plaintiff in error.

Homer A. Holt, Attorney General, and Kenneth E. Nines, Assistant Attorney General, for the State.

Hatcher, Judge:

From conviction of a charge of attempted rape, the defendant secured a writ of error.

The defendant denied the charge, but since the verdict of the jury was against him, we must favor the evidence of the State, which is as follows:

About 10:00 A. M. on a Sunday in October. 1934. Betty Richards, then aged five years and seven months, was sent by her mother to purchase a newspaper. Betty returned about twenty minutes later, in a disheveled condition, started to cry and exclaimed: "He spilled white stuff all over me * * * he held me close to him and spilled white stuff." The upper part of Betty's legs and the lower front of her dress were wet with a whitish fluid. She wore tight-fitting panties which were dry. A friend of Mrs. Richards went with the child at once to ascertain where she got the paper. Betty's statement upon that trip, as narrated by the friend, was stricken out. Upon her return home, Betty was taken by an officer to a beer garden and news stand operated by defendant who is an adult. The officer there asked Betty "if that was the man with the white apron on" (defendant), and she answered yes. In response to interrogation, the defendant said, according to the officer, "that the child had been up there after a paper, and that he took her in the back room to wrap the paper up, and that lie gave them to her and put the money in her pocket." The officer said the back room "is a storage room and there are beer cases and coca-cola cases there, and there was one * * * case that was * * * standing on its end." Betty's legs were red and sore, and she complained that her genitals burned when given a bath. She was taken by her mother and a policeman to a doctor for examination, as testified to by the policeman, "to see if the little girl had been injured in any way," and "no entry had been made * * * according to the doctor's statement," The doctor did not testify and there is no evidence regarding the appearance of the child's genitals. A pathological examination disclosed seminal fluid on the front of her dress. The child was produced as a witness but the trial court ruled she was not competent to testify.

The defendant estimated that Betty waited in his place from five to ten minutes, while he served other customers, and proved, without controversion, that customers were coming and going all the time she was there. He contends that her several statements to her mother and to the officer are not admissible in evidence, and that the court erred in giving state's instructions 1 and 2 and in refusing defendant's instructions 1 and 17.

An infamous charge deprives an accused of none of his legal rights; and the more infamous the accusation the more careful courts should be that a fair trial is had and that legal evidence, not prejudice, is the basis of a conviction. Herrick v. Territory, 2 Okla, Cr. 74, 76, 99 P. 1096. A discussion of the evidence in this case is nauseous. A dispassionate consideration thereof is difficult, It is our duty, nevertheless, to attempt both.

The attorney general contends that the statements of the child are admissible as part of the res gestae. Statements are admissible as such if spontaneous and made while under the influence of the transaction itself. Underbill's Cr. Ev. (4th Ed.), sec, 200; Sample v. By. Co., 50 W. Va. 472, 478, 40 S. E. 597. Betty's conversation with her mother occurred within a few minutes after she had been attacked. Her body was still slimed, and her emotions still fomented from the sexual embrace. Under such circumstances, it seems beyond question that her statement was spontaneous and voiced the transaction. See State v. Gilreath, (Mo.) 267 S. W. 880. There is a division of authority on the reception of such a statement as original evidence, where the injured female does not testify. The later authorities favor its admission when part of the res gestae. After stating a general rule to the contrary, Wharton in the eleventh edition of his work on criminal evidence, just off the press, sec. 520, says: '' But where the declarations of the prosecuting witness are a part of the res gestae, a different situation pertains. Declarations admitted as res gestae constitute original evidence, and are not admitted as corroborative of a witness, but on the theory that they are verbal acts connected with the transaction, and calculated to illustrate its character. Under this theory, therefore, although the victim of rape is not a witness, both her complaints, and the details thereof, are admissible, where the circumstances are such that they constitute a part of the res gestae." Accord: Wigmore on Ev. (2nd Ed.), sec. 1761; Thomas v. State, 47 Tex. Cr. 534, 84 S. W. 823; Commonwealth v. Bardino, 20 Pa. Dist. 473; State v. Eckelberry, 153 Minn. 494, 496-7, 191 N. W. 256; Annotation 2 A. L. R. 1522.

Different circumstances, however, surround Betty's statement to the officer. She had become mentally composed before he started with her to confront defendant. Her identification of him was not voluntary, but in response to a leading question by the officer. Interrogation alone does not exclude a reply from the res gestae; but the question should not prompt the answer. Commonwealth v. Bardino, supra. Moreover, the question of the officer was not definite. The child was asked merely if defendant was "the man." What man? The salesman or her assailant? She is not quoted as saying that she was assaulted in the paper shop, or that the salesman was her assailant. She had been brought to defendant's store just a short while before to see if that was the place she had purchased the paper. There is nothing in the evidence to indicate that she had been informed or otherwise understood that her second trip was to identify her assailant instead of the man who had sold her a paper. It is just as tenable that her answer referred to the latter as to the former. For the same reasons, the admissibility of the answer cannot be even considered as affecting an admission (silent) against defendant's interest, or as his extrajudicial identification. (For modern view of the latter, see Wharton, supra, sec. 439.)

It is suggested that other circumstances identify defendant as the assailant. Without analyzing that suggestion, suffice to say it is at least debatable; and if conviction is to depend on the other circumstances, they alone should be submitted to the jury. The answer of Betty to the officer was seemingly understood by him to identify defendant as her assailant. (The officer forthwith arrested defendant.) Counsel for the state assume the same position. It is fair presumption that the jury drew the same inference from the answer and did not consider separately the weight of the other circumstances. If so, the answer was very damaging to the defendant.

State's instruction number 1 defined attempted rape as an unfinished crime, consisting of an intent to rape and a direct act in consummation thereof which fails. No error is pointed to in this instruction and we perceive none.

State's instruction number 2 instructed the jury to find the defendant guilty if it believed from the evidence beyond a reasonable doubt that he "placed his male organ against the privates of Betty Richards" with intent to know her carnally. This instruction is calculated to mislead. The jury could well infer that the act of placing the one organ against the other, itself implied intent to rape. While that juxtaposition would usually indicate intent to have carnal knowledge, yet when nothing more than that form of contact is attempted such intent is negatived. State v. Matsinger, (Mo.) 180 S. W. 856. The instruction is further objectionable because supported only by conjecture, and the burden of proof is not sustained thereby. 16 C. J., supra, sec. 1088. The evidence thereon will be discussed later.

Defendant's instruction number 1 was peremptory and was properly refused.

Defendant's instruction number 17 follows: "The Court instructs the jury that improper advances and indecent liberties do not necessarily imply an intent to commit rape, and that in this case if you believe that improper advances were made toward Bettie Joan Richards by the Defendant at a time and place when she was within the power of the Defendant, and that said advances were not met with unusual resistance-or checked by outside interference, but were terminated voluntarily by the Defendant or upon the mere request of Bettie Joan Richards, then such desistence should weight heavily in favor of the Defendant."

The legal premise of this instruction is correct....