State Or West Va. v. Seckman, (No. 9334)

Citation124 W.Va. 740
Decision Date13 October 1942
Docket Number(No. 9334)
CourtSupreme Court of West Virginia
PartiesState or West Virginia v. Lester J. Seckman

124 W.Va. 740

State or West Virginia
v.
Lester J. Seckman

(No. 9334)

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1942.
Decided October 13, 1942.


[124 W.Va. 740]

Criminal Law

In a trial for rape in which the accused has not put his character in issue by attempting to prove a previous good character, the prosecuting attorney's action in propounding to defendant's mother-in-law, a witness for the State, the question whether the marriage of witness' daughter to defendant was the result of a sexual assault made by defendant on the daughter before she was sixteen years of age and three years prior to the trial, coupled with his reference to defendant in closing argument to the jury as "this man whose wife does not appear in his defense," is prejudicial error, not cured by the rulings of the trial court in sustaining an objection to the question and instructing the jury to disregard both question and comment.

Error to Circuit Court, Harrison County. Lester J. Seckman was convicted of rape by force and violence and brings error.

Judgments reversed, verdict set aside; new trial awarded.

[124 W.Va. 741]

J. Paul Bumgardner, for plaintiff.

William S. Wysong, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Riley, Judge:

Lester J. Seckman was convicted in the Criminal Court of Harrison County of the offense of rape by force and violence and sentenced to serve a term of five to twenty years in the penitentiary. Defendant prosecutes error to the judgment of the circuit court refusing a writ of error.

Reversal of the trial court's judgment is sought on the basis of the court's refusal to grant a mistrial on two grounds: (1) That though the defendant did not place his character in issue during the trial, a direct assault was made thereon by the action of the prosecuting attorney in calling as a witness Laura Nutter, defendant's mother-in-law, and propounding to her the question: "I will ask you to tell the jury whether or not the marriage of your daughter to the defendant was the result of a sex assault made by the defendant on your daughter before she was sixteen years of age, in the year 1937, three years ago?"; and (2) the prosecuting attorney's reference to the defendant in closing argument as "this man whose wife does not appear in his defense".

Mrs. Nutter was called during the course of the State's evidence. After a few preliminary questions, which identified her as defendant's mother-in-law, the prosecuting attorney addressed to her the...

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