State Of West Va. v. Friedman
| Decision Date | 03 February 1942 |
| Docket Number | (No. 9204) |
| Citation | 124 W.Va. 4 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. Sherman Friedman |
Criminal Law
Code, 57-3-6, requires an accused who voluntarily becomes a witness in his own behalf to state in response to questions propounded on cross-examination, whether or not he has been convicted of other offenses.
Error to Circuit Court, Taylor County. Sherman Friedman was convicted of sodomy, and he brings error.
Affirmed.
Jed W. Robinson, Wm. T. George and James C. Holt, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
The plaintiff in error, Sherman Friedman, was convicted in the Circuit Court of Taylor County of the statutory offense of sodomy and the prescribed sentence imposed. In prosecuting this writ, he relies upon seven errors he avers the trial court committed: (1) In not setting aside the verdict as contrary to the law and the evidence; (2) in admitting the testimony of a police officer and deputy sheriff concerning statements made to them by the accused while in the Taylor County jail; (3) in requiring the accused to respond to a question propounded on his cross-examination concerning a former conviction of a misdemeanor; (4) in permitting that question to be asked and requiring it to be answered when the character of the defendant was not in issue; (5) in approving state's instruction number one denning the offense without including the emission of semen; (6) in giving state's instructions numbers two and three attempting to define reasonable doubt; and (7) in declining defendant's instructions eight and nine, the first dealing generally with the jury's deliberation and the second with the convictions of the individual juror, in effect, being the often discussed "hanging instruction."
We have carefully examined an unavoidably revolting record and shall attempt to fully discuss only what we regard as the essential question presented.
The lack of speeificness in the first assignment robs it of consequence.
Point two is based upon a statement made by Deputy Sheriff Guth to the accused in the county jail of Taylor County on August 5th, the day upon which the accused was arrested the second time, the alleged offense having occurred August 2nd just before midnight, to the effect that it would be much better for the accused to state the truth concerning the occurrences with which he stood charged. According to the testimony of the officer, Friedman admitted the occurrence with the exception of having threatened or coerced the prosecuting witness to take part. Friedman denied having admitted his guilt to the officers, and yet insists that the statement he made to them was induced by their threat that otherwise the state would make a mountain out of a mole hill and "send him up" for twenty years. But conceding that the defendant's position is consistent and that he could have been coerced into making an admission that he emphatically denies, we see nothing that would coerce, intimidate or be unduly persuasive in stating to an accused that it would be better to tell the truth, that being what took place according to the testimony of the officers.
Points three and four are both predicated upon the same occurrence, and consequently will be discussed as a single question.
Prior to the enactment of the Official Code of 1931, West Virginia followed the minority rule which permitted an accused to take the stand, and at the same time did not require him to answer questions concerning previous convictions. Including West Virginia, there were six states that did not allow this type of cross-examination, Massachusetts being one of them, where a previous conviction of an accused-witness, while not permitted on cross-examination, could be shown by record proof. The same rule obtains in Pennsylvania. In thirty-six other states and in the Federal courts previous conviction of an accusedwitness could be shown either under the common law rule or by virtue of the statute.
For a statement of the Federal rule and the citation of Federal cases, see Simon v. United States, 123 Fed. 2d 80, a case that went to the Circuit Court of Appeals for the Fourth Circuit from this District.
The case of State v. Webb, 99 W. Va. 225, 128 S. E. 97, decided in May, 1925, is the most recent pronouncement of this Court on the question. The Webb case reaffirmed the definitely established West Virginia rule, although it does so in full recognition of the fact that the decidedly great weight of authority then permitted an accused who voluntarily took the witness stand to be examined affecting his credibility to the same extent as other witnesses.
When the Webb case and the previous West Virginia cases on the subject were decided, what is now Code 57-3-6, read as follows: "In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused shall, at his or her own request (but not otherwise) be a competent witness on such trial or examination. * * *." Even when the section was limited to that language, the accused, in taking the stand, was not permitted to confine his examination by the state to the subject matter of his examination in chief, but could be asked upon cross-examination, or...
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State v. McAboy
...was prejudicial to him, and was influential in the finding of the verdict." (99 W.Va. at 230, 128 S.E. at 99) In State v. Friedman, 124 W.Va. 4, 18 S.E.2d 653 (1942), this principle was abandoned by the Court based on a misconception of the purpose of the 1931 revision to W.Va.Code, 57-3-6.......
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...statute, and now holds that the accused may be required to answer as to previous convictions of felonies or misdemeanors. State v. Friedman, 124 W.Va. 4, 18 S.E.2d 653. The result is, we find no jurisdiction which does not permit the impeachment of the accused when he becomes a witness, by ......
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