State Of West Va. v. Graham
| Citation | 119 W.Va. 85 |
| Decision Date | 15 June 1937 |
| Docket Number | (No. 8562) |
| Court | Supreme Court of West Virginia |
| Parties | State of West Virginia v. Clark Louis Graham |
1. Criminal Law
In a criminal trial, the state cannot introduce evidence, not connected with the crime for which the accused is being tried, for the purpose of showing his bad character, until the accused has first put his own character in issue by attempting to prove a previous good character.
2. Criminal Law
Abusive and intemperate language, used by a prosecuting attorney against the accused and his witnesses in the conduct of a criminal trial, calculated to inflame the passions of the jury, may be reversible error, not curable by the rulings of the trial court.
3. Rape
In a trial for rape, it is prejudicial error for the prosecuting attorney, in the presence of the jury, to direct the arrest for rape of one of the accused's witnesses, who was testifying of previous relations which he had had with the prosecutrix. Such conduct is not cured by the action of the trial court in preventing the arrest and in directing the jury to disregard the happening.
Error to Circuit Court, Putnam County. Clark Louis Graham was convicted of rape with force and arms, and he brings error.
Judgment reversed; verdict set aside; new trial awarded.
J. Raymond Gordon and Frank Lively, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.
At the June Term, 1936, of the Circuit Court of Putnam County, the defendant, Clark Louis Graham, was indicted for rape with force and arms on one Helen Eubanks. He was tried, convicted and sentenced to serve fifteen years in the penitentiary.
The defendant is fifty-six years of age and a resident of Montgomery, West Virginia. About noon, on May 25, 1936, he went to the home of Mrs. Elizabeth Eubanks near Guthrie, two and one-half miles from the corporation limits of the City of Charleston on U. S. Route 25. The evidence offered on behalf of the state was to the effect that he told Mrs. Eubanks that his name was "Mr. Gum"; that he lived at Spring Hill (east of St. Albans on Route 60); that his wife had a fractured or badly sprained ankle and was in the hospital; that Ruth Patton (Mrs. Eubanks' niece) had directed him to her; that he wanted her youngest girl, the prosecutrix, Helen Eubanks, aged twelve years and nine months, to help in his home; that he would pay her four dollars and fifty cents a week; and that he didn't want Rhoda Eubanks who was twenty-two years old because his wife could train the younger girl better.
It appears that the defendant and prosecutrix left the Eubanks home in a Dodge sedan about noon, and then went to a store at St. Albans where the defendant purchased the prosecutrix shoes and stockings. From there, he drove west on the Huntington Pike (U. S. No. 60) and turned off to the left on a dirt road known as Trace Fork Road (two miles east of Hurricane), which was under construction. When about two and one-half miles from the intersection with the Huntington Pike, defendant stopped the car at a sparsely settled place on the road located in Putnam County where the alleged misconduct was claimed to have taken place.
Prosecutrix testified that the defendant made her get into the rear seat of the car; that she was afraid not to; that he then pulled her down and had relations with her. She was then in her menstrual period. She testified that she began to cry and begged the defendant to stop. According to her testimony, the defendant, on the way back on Route 60, drove past a house at Spring Hill where he said he lived, but did not stop there because there were no lights. The defendant testified that he drove back to Charleston, where he discharged the prosecutrix for some time and then took her back to her home. She arrived home about ten-thirty that night.
Doctor James E. Roberts of Charleston, who examined the prosecutrix on the following day, found that she had had recent sexual intercourse; and that there were stains of blood on her female organs anil underclothing next to her body. Whether these stains came from her menses is undisclosed. The doctor further testified that there were no marks on the outside of her body showing violence; that he would not say that this was her first act of intercourse; and that her female organs were a little above the average in development.
The prosecutrix testified that she never had had sexual intercourse before her alleged relations with the defendant. One witness, however, testified that he saw his brother in bed with her in April, 1935. Edward Gilfillen, a witness for defense, testified that on one night more than a year before the trial he had slept with the prosecutrix at Mrs. Tom Harmon's home, and on that occasion had had relations with her. Upon rebuttal, Mrs. Harmon testified that at no time had the prosecutrix been at her home with Gilfillen.
The defendant testified that he drove with the prosecutrix to St. Albans, which is situated between the prose- cutrix' home and Trace Fork Road, for the purpose of arranging for the use of two trucks which he owned, and that he went down on Trace Fork Road to see if the contractor on that road had his own trucks. He denied ever having sexual intercourse with the prosecutrix and that he represented himself to Mrs. Eubanks as "Mr. Gum." In a number of particulars, he contradicted the two members of the State Police who testified as to certain alleged statements which the defendant made to them at the time of and after his arrest.
The first assignment of error is that the evidence is insufficient to show that the defendant had relations with the prosecutrix by force and against her will. The original warrant under which he was arrested was based upon statutory rape. However, he was indicted and tried on the theory of rape with force and arms. Whether or not the defendant had carnal knowledge of the prosecutrix against her will is purely a jury question which was solved in favor of the state.
On this question, the evidence introduced on behalf of the state is sufficiently strong for a jury to find that the presumption of innocence in favor of the defendant was overcome. Under the circumstances, we are not at liberty to disturb the verdict on the ground cited under this assignment of error. State V. Barkoski, 96 W. Va. 265, 122 S. E. 654.
During the course of the trial, the prosecuting attorney made repeated efforts to blacken the defendant's character. These efforts, in part, were made before the defendant had undertaken to put his own character in evidence. The state is not at liberty to impeach the character of a defendant in a criminal action unless the defendant, in the first instance, puts his own character in evidence. Ginger V. Commonwealth, 137 Va. 811, 120 S. E. 151; State V. Sheppard, 49 W. Va. 582, 39 S. E. 676, 678; State V. Miller, 75 W. Va. 591, 84 S. E. 383, 384. Though not sustained by the trial court, these repeated efforts of the prosecuting attorney had a cumulative effect which, coupled with the other happenings in this case, were dangerously apt to incite prejudice in the minds of the jury.
Defendant's counsel, as their third assignment of error, claim that Mrs. Thomas Harmon, a witness, was sworn and asked two questions in the defendant's absence, and, when the defendant returned to the room, she was resworn and the same two questions were again addressed to her. In support of this assignment of error, defendant's counsel cite us to State V. Sheppard, supra; and State V. Greer, 22 W. Va. 800. The record, however, does not disclose that the defendant was outside the room when this witness first began to testify. It simply shows the statement of defendant's counsel to the effect that the defendant was absent from the room while the first two questions were addressed to the witness, and the counter statement of the prosecuting attorney tothe effect that the defendant never left the room but was standing near the door. The trial court overruled the motion of defendant's counsel for a mistrial based upon the claimed absence of the defendant. No effort having been made of record to show that the defendant was actually absent from the room, when the first two questions were asked the witness, we assume that the trial court was under the impression that the defendant was actually present during the whole course of the examination of the witness. We therefore find no error under this assignment.
After Gilfillen had testified on direct examination to the effect that he had passed a night with the prosecutrix at the Harmon home, during which he had relations with her, he was turned over to the prosecuting attorney for cross-examination. Thereupon, in the...
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