State v. Andrew Brady

• Decision Date: 29 November 1927
• Docket Number: (No. 5861)
• Citation: 104 W.Va. 523
• Court: West Virginia Supreme Court
• Parties: State v. Andrew Brady

104 W.Va. 523

State

v.Andrew Brady

(No. 5861)

Supreme Court of Appeals of West Virginia.

Submitted November 15, 1927.

Decided November 29, 1927.

1. Criminal Law On Conflicting Affidavits, Existence of Prejudice Calling for Change of Venue is Question for Trial Judge.

Where the affidavits setting up facts and circumstances in support of an application for change of venue are met with affidavits stating facts and circumstances denying the existence of a feeling or prejudice against the prisoner among the people of the jurisdiction, at the time of trial, as would prevent him from obtaining a fair and impartial trial, the question thus presented by the conflicting affidavits is one of fact to be passed on by the trial judge. (p. 528.)

(Criminal Law, 17 C J. § 3597.)

2. Same Riding on Application for Change of Venue is Not Subject to Review on Appeal, Except for Abuse of Power.

The judgment of the trial court on such question is not subject to revision by the appellate court, except in cases of abuse of its power. (p. 529.)

(Criminal Law, 17 C J. § 3577.)

3. Same Before Admitting Confession, Trial Court Must Determine Whether it Was Voluntary, or Under Inducement by One in Authority, of Benefit or of Mitigation of Punishment; State Has Burden to Show to Trial Court's Satisfaction That Confession Should Be Admitted.

It devolves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefit or reward of a worldly or temporal character, or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession.. (p. 529.)

(Criminal Law, 16 C..J. § § 1468, 1509, 1513.)

4. Same Weight Which Should be Given Confession, in Connection With All Other Evidence, is Jury Question.

Upon the admission of such confession the jury becomes the final judge of the weight and effect that should be given it in connection with all other evidence in the case as to the guilt or innocence of the defendant. (p. 530.) (Criminal Law, 16 C. J. § 2287.)

5. Same That Confession is Made to Public Officer and in Answer to Questions Will Not Render It Inadmissible, if Voluntarily Made, Without Threats, Intimidation, Promises of Reward, or Immunity From Punishment.

The fact that a confession has been made to a public officer, such as a sheriff or prosecuting attorney, will not render it inadmissible, provided it has been freely and voluntarily made, though in response to questions, if made without any threats or intimidation or promises of reward or immunity from punishment for the crime. (p. 530.)

(Criminal Law, 16 C. J. § 1474.)

6. Same Witness Qualified by Practical Experience in Field Giving Him Special Knowledge May Testify as Expert; One Engaged for Reasonable Time in Particular Profession Will Be Assumed to Have Ordinary Knowledge Common to Persons so Engaged, in Passing on His Qualifications as Expert Witness.

A witness may testify as an expert, where he is qualified by practical experience in a field of activity conferring on him special knowledge, not shared by mankind in general; the rule in this respect being that one who has been engaged for a reasonable time in a particular profession, will be assumed to have the ordinary knowledge common to persons so engaged. (p. 531.)

(Criminal Law, 16 C. J. § 1532.)

7. Same Question of Witness' Qualifications as Expert Through Practical Experience is Largely in Trial Court's Discretion, and Its Judgment Will Not be Reversed, Except on Clear Showing of Error.

The question of such witness' qualification to speak as an expert lies largely in the discretion of the trial court, whose judgment will not be reversed unless it clearly appears that the witness is not qualified. (p. 532.)

(Criminal Law, 16 C. J. § 1532; 17 C. J. § 3582.)

8. Rape To Constitute Rape, Male Genital Organ Must Penetrate Female Genital Organ, But Any Penetration of Labia or External Lips of Female's Vulva, Known as "Vulva Penetration" is Sufficient; Hymen Need Not be Ruptured to Sustain Conviction for Rape.

To constitute the crime of rape, there must be some degree of penetration of the female genital organ by the male genital organ, but any penetration, however slight, of the labia or external lips of the vulva of the female is all that is necessary. The hymen need not be ruptured to sustain a conviction for rape. (p. 533.) (Rape, 33 Cyc. p. 1422.)

9. Criminal Law Instructions Must be Considered as Whole; if One Instruction Fully Covering Principle of Law Applicable to Case is Given, Refusal of Other Instructions to Same Effect, Differently Expressed, is Not Error.

As we have held many times, instructions must be considered together as a whole, and if one instruction has been given fully covering a principle of law applicable to the case, it is not error to refuse other instructions to the same effect, although differently expressed. (p. 534.)

(Criminal Law, 16 C J. § § 2493, 2506.)

10. Eape Evidence Held to Sustain Conviction of Rape.

A case where the facts and circumstances sustain the verdict of guilty of rape. (p. 535.)

(Rape, 33 Cyc. p. 1486.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Error to Circuit Court, Hardy County.

Andrew Brady was convicted of rape, and he brings error.

Affirmed.

Kuykendall & Thompson, for plaintiff in error.

Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

Andrew Brady was convicted by a jury in the circuit court of Hardy county of rape. Judgment of death was pronounced upon him by the court, and from that judgment he prosecutes a writ of error.

The evidence of the state shows that the defendant went to the home of Seymour Huffman, about a mile above the town of Petersburg, a little before 11 o'clock, on Sunday morning, August 15, 1926, asked for a cup of water of the seventeen year old white girl (the prosecutrix here), who was living in said home as a domestic, and further asked if Mr. Huffman wanted to hire a man to work for him. He said his name was Riffy. The Huffman family had gone to Burlington to attend a camp meeting, and the domestic was the only person left in the home. While getting the cup of water for him, he grabbed her, threw her on a table, and by force committed a rape upon her person. The details of his action in this respect will be adverted to later in this opinion. The defendant ran from the house. Whereupon the girl ran out into the yard, and called a neighbor, who lived close by, to come over, as something awful had happened. The neighbor states that in response to the girl's call, she went to her and found her crying and leaning against the fence, and that it was sometime before she was able to tell her what had happened. Examination revealed marks on her neck, arm, back, and stomach. She had seen the defendant once before, and was able to identify him at the preliminary hearing as the man who had made the attack upon her. Moab Simmons saw defendant at about eleven o'clock that morning at the railroad tracks, about ten or fifteen steps from the Huffman home. Defendant went through the gate that led to the Huffman house. Gilbert Bean saw him about the same time about one hundred to one hundred and fifty feet from the same house. John Brill saw him going toward the Huffman house, at which time he was as near the house as the distance across the court room. He was going toward the back of the house. Shortly afterward this same witness saw the girl coming off the porch out through the gate toward his house, and calling for his wife to come over right quick. His wife responded to the call as we have already shown. A confession of the defendant was admitted in evidence of the following purport and effect: "I went up to Seymour Huffman's on Sunday, August 15, 1926, between 11 and 12 o'clock. I went into the house, and the girl was there. I pushed her over on the table, pulled her legs apart and pulled her bloomers down. When I took hold of her she began to kick, struggle and scream. I then choked her and after a few minutes wrestling and struggling with her I succeeded in forcing my private into her. She continued to struggle and scream and I became scared and ran. I was out looking for some girl, had been drinking a little that day, had my passions excited and thought this was as good a place as any to have that excitement relieved. She never consented, but by choking her I managed to force her. The foregoing statement and confession have been read to me, and I certify that they are correct in every detail." The defendant signed by mark before witnesses. The prisoner remarked upon executing it: "I want to sign it because it is the truth."

The defendant by his evidence seeks to establish an alibi. He denies being at Huffman's house at the time the offense was committed, as fixed by the state's evidence. He admits drinking some the night before. He got up at half past six on Sunday morning. He went to the tannery (where he had been working during the preceding week) and stayed until between eight and nine o'clock, after which he went down to Hinkle's Addition and had a little "old hen". He and a man named Slick Ford left the tannery in a Ford automobile owned by the latter. They drove to where Slick lived and left the car. From there he walked to Cleal Riggleman's home. Dick Taylor was with him. On being asked what business he had there, he replied, "None". From there he came up the railroad track toward Huffman's. The railroad track runs through the Huffman place. Then he went home. On being asked what time he got there, he replied, "About eleven o'clock, I guess." He then went to a near neighbor's to get his hair cut, and while there Brill, the state's witness, came and asked him if he had...