State v. Adkins

• Decision Date: 12 February 1929
• Docket Number: 6317.
• Citation: 146 S.E. 732,106 W.Va. 658
• Parties: STATE v. ADKINS.
• Court: West Virginia Supreme Court

146 S.E. 732

106 W.Va. 658

STATE v. ADKINS.

No. 6317.

Supreme Court of Appeals of West Virginia.

February 12, 1929

Submitted February 5, 1929.

Syllabus by the Court.

The testimony of a witness from actual knowledge and positive recollection of a circumstance is the best evidence.

A memorandum is "hearsay evidence." It is admissible only when the one who made it is dead, or his testimony is not available.

An entry in a family Bible is simply a written declaration, and its admissibility in evidence is tested by the same rules which apply to other memorandums.

Any writing which stimulates and revives a recollection may be used to refresh memory.

(Additional Syllabus by Editorial Staff.)

Admission in evidence of entry in family Bible for purpose of establishing age was harmless error, in view of fact that age was amply established without reference to Bible.

Error to Circuit Court, Mercer County.

W. H Adkins was convicted of statutory rape, and he brings error. Affirmed.

Howard B. Lee, Atty. Gen., and R. A. Blessing Asst. Atty. Gen., for the State.

John Kee, of Bluefield, for plaintiff in error.

HATCHER J.

In this case the defendant was found guilty by the jury of a charge of statutory rape, with a recommendation for mercy. He was given the minimum sentence under section 15, chapter 144, Code. There is no material conflict in the evidence, except as to the actual commission of the offense. The time charged is July, 1927. At that time the age of the prosecuting witness, Juanita Gay Shirley, was 13 years and 7 months, and that of the defendant 25 years. Both resided in Bluefield, and were unmarried. Near midnight, July 11th, the accused took Juanita for an automobile ride to Matoaka, returning to Bluefield about 7 o'clock in the morning. While on that trip the prosecutrix says they left the main road and went up a certain dirt road for about a half a mile, where the accused had unresisted sexual intercourse with her. She was examined by a physician on the morning of July 12th. He testified that he discerned slight abrasions of recent formation at the entrance to her vagina, and found "definite" male spermatozoa in a specimen of her urine; that the abrasions could have been produced otherwise than by copulation, but that the spermatozoa are never present in the vagina, except for a period of approximately 48 hours after coitus, and that their presence there must be attributed to sexual union.

The accused did not controvert any details of the trip as testified to by Juanita, except that he denied any improper conduct with her. He says they were "just riding around." He proved a good reputation for himself prior to this charge, and that Juanita was disposed to be wayward. She admitted having sexual intercourse with one other man, several months before July 12th.

The trial was had in January, 1928. Mrs. W. L. Shirley, the mother of Juanita, testified that the girl was 14 years old on December 7, 1927. Mrs. Shirley identified a book as her family Bible, and stated that she had entered the name of Juanita therein about 2 weeks after her birth. The book was introduced in evidence, and the witness read therefrom: "Juanita Gay Shirley, born Sunday, December 7, 1913." Mrs. Shirley then produced a card (not introduced in evidence) which she stated was "a certificate of birth from the Bureau of Vital Statistics at Richmond, Virginia." She was asked to look at the card, and say if it refreshed her memory as to when Juanita was born. The witness simply answered, "That's correct." The next interrogation was, "When did you say she was born?" and her reply was, "She was born December 7, 1913." It later developed that Juanita was born at Snowville, Va.

The defendant charges error to the introduction of the Bible as primary evidence, because Mrs. Shirley, who made the entry therein, was a witness. The testimony of a witness from actual knowledge and positive recollection of a circumstance is considered the best evidence. A memorandum is regarded merely as "hearsay evidence." It is admissible only when the one who made it is dead, or his testimony is not available. In conformity with that rule, it has been specifically held that, despite the respect due a Bible as such, an entry therein, being made without the sanction of an oath or the opportunity to cross-examine the entrant, is to be regarded simply as a written declaration, and is entitled to no higher consideration than would be given any other memorandum made at the same time by the same person Robinson v. Blakely, 4 Rich. (S. C.) 586, 55 Am. Dec. 703; People v. Mayne, 118 Cal. 517, 50 P. 654, 62 Am. St. Rep. 256. The question is tersely disposed of by the Supreme Court of Missouri as follows: "It is fundamental that such entries in a family Bible, are, when considered as potential evidence, nothing but hearsay, and as such on a parity touching their admissibility with mere verbal declarations of the entrant or declarant." State v. Bowman, 278 Mo. 492, 502, 213 S.W. 64, 67. Accord: Buzzard v. Commonwealth, 134 Va. 641, 114 S.E. 664, and authorities cited; Campbell v. State, 21 Okl. Cr. 242, 206 P. 622, 29 A. L. R. 369, and the decisions gathered in the extensive annotation, commencing on page 372; Jones, Commentaries on Evidence (2d Ed.) § 1149, p. 2112; 10 R. C. L. pp. 1136, 1137, § 343.

The father of Juanita, without reference to any memorandum testified that he was married in 1912, and that Juanita was born on December 7, 1913. The principal of the junior high school attended by Juanita (a witness for the accused) testified on cross-examination that the information furnished by the parents, when Juanita entered the first grade, as shown by the school record, was that she was born on December 7, 1913. Juanita testified that she was 14 years of age on December 7, 1927. Admissible under State v. Spielman, 105 W.Va. 370, 142 S.E. 523. See, also, annotations 39 A. L. R., commencing on page 376. Mrs. Shirley said that Juanita was 14 years old on December 7, 1927, before she was questioned as to the Bible record. There was no objection by accused to any of the evidence as to Juanita's age, except the entry in the Bible and the certificate, and no effort whatsoever to disparage it. We are therefore of the opinion that the age of Juanita is...