State Of West Va. v. Martin
| Citation | 112 W.Va. 88 |
| Decision Date | 05 April 1932 |
| Docket Number | (No. 7113) |
| Court | Supreme Court of West Virginia |
| Parties | State of West Virginia v. Olaf Martin |
Rape
Where, under an indictment charging two separate individuals with rape, one has been convicted of the crime charged, the other may be tried thereunder as a principal in the second degree, and, if convicted, punished as the principal felon.
Error to Circuit Court, Eandolph County.
Olaf Martin was convicted as a principal in the second degree upon an indictment charging him and another with rape, and he brings error.
Affirmed.
E. L. Maxwell, for plaintiff in error.
Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.
Olaf Martin was found guilty as principal in the second degree upon an indictment charging him and Mert Wamsley with rape, and sentenced to five years in the penitentiary. Wamsley was convicted of rape at the October, 1929, term and given a sentence of seven years. The judgment in that case was affirmed by this court in State v. Wamsley., 109 W. Va. 570, 156 S. E. 75, to which reference is asked for a complete statement of the facts. Martin was tried in March,.1931, some months subsequent to the foregoing decision.
The evidence in the instant case is substantially the same as that introduced at the trial of Wamsley. The prosecutrix testified that while she was out at the fence, which paralleled the highway, for the purpose of receving a bucket which had been borrowed earlier in the day by some berry-pickers, the defendant, accompanied by Wamsley, drove by in a car, stopped, backed up in front of the gate, and that Wamsley engaged her in conversation, and asked her to take a ride with them. He also inquired if any one was at home, to which she replied that "some are in the hayfield and the rest in town.'' The remainder of the testimony of the prosecutrix is to the effect that she started for the house; that the boys alighted and without invitation followed her into the front room of the dwelling; that she and "Wamsley sat down, and defendant remained standing; that defendant went out at the front door, and that she did not know when he returned; that after defendant had left the room, Wamsley grabbed her and threw her on the bed, and accomplished the purpose of his lust; that she screamed; that when she got off the bed, defendant was standing inside the door on the opposite side of the room from the front door; that she went to the kitchen, and as she was attempting to leave the house, defendant grabbed her around the waist and got her back in the bedroom, and that Wamsley ran through the house and said "wait a minute ! there is a car coming!" Prosecutrix states that when she came to her senses her head was under a chair and her bloomers were off her left leg.
Counsel for defendant, on cross-examination, endeavored to discredit the testimony of the prosecutrix by pointing out certain alleged inconsistencies with former statements. He sought to show that prosecutrix had testified in the Wamsley case that the Martin boy stood just outside the front door, so that his shoulder was visible to her. However, from other portions of her testimony in that case, it appears that she was referring partly in regard to his position immediately after Wamsley had violated her person. The fact that the prosecutrix was unable to recall whether Wamsley had directed Martin to get him a drink of water, just prior to Martin's leaving the room, as appeared from her examination before the grand jury, was also stressed. Such a statement, if made, would have amounted to nothing more than a signal. This apparent lapse of memory was a matter for the jury to weigh along with all the other facts and circumstances.
Upon the completion of her case in chief, the State, upon being required to elect whether she would seek conviction of defendant on the charge of rape, or as a principal in the second degree, chose the latter.
Defendant, while on the stand, admitted that he and Wamsley were in the Paugh home at about the time of the alleged crime. However, he states that he did not know that Wamsley had ravished prosecutrix, and that he heard the latter make no outcry. He denies having grabbed prosecutrix around the waist to keep her from leaving the house.
Now, as to the assignments of error. It is contended that the indictment was demurrable: (1) that but one can commit the act at a time, and if both did carnally know the...
To continue reading
Request your trial
-
State ex rel. Brown v. Thompson
...W.Va. 185, 83 S.W.2d 528; State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692; State v. Digman, 121 W.Va. 499, 5 S.E.2d 113; State v. Martin, 112 W.Va. 88, 163 S.E. 764; State v. Wamsley, 109 W.Va. 570, 156 S.E. 75; State v. Powers, 91 W.Va. 737, 113 S.E. 912; State v. Bailey, 63 W.Va. 668, 60 S......
-
State v. Franklin
...a jury to find the defendant guilty of an attempt, though charged with the commission of a greater offense. The case of State v. Martin, 112 W.Va. 88, 163 S.E. 764 holds that, 'Where, under an indictment charging two separate individuals with rape, one has been convicted of the crime charge......
-
State v. Fortner
...Syllabus, State v. Patterson, 109 W.Va. 588 ." See also State v. Hoselton, 179 W.Va. 645, 371 S.E.2d 366 (1988); State v. Martin, 112 W.Va. 88, 163 S.E. 764 (1932); State v. Johnson, 104 W.Va. 586, 140 S.E. 532 (1927). However, proof that the defendant was present at the time and place the ......
-
State v. Hoselton
...v. Adkins, 162 W.Va. 815, 253 S.E.2d 146 (1979), overruled State v. Lassiter, 177 W.Va. 499, 354 S.E.2d 595 (1987); State v. Martin, 112 W.Va. 88, 163 S.E. 764 (1932); State v. Powers, 91 W.Va. 737, 113 S.E. 912, 916-17 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 ......