State v. Barrick
| Decision Date | 20 November 1906 |
| Citation | 55 S.E. 652,60 W.Va. 576 |
| Parties | STATE v. BARRICK et al. |
| Court | West Virginia Supreme Court |
Submitted June 9, 1906.
Syllabus by the Court.
An indictment charges that defendants "in and upon one Martha Harbert *** feloniously did make an assault, and her the said Martha Harbert, *** did ravish and carnally know," is not bad for failing to aver that Martha Harbert is a female.
An indictment which names a defendant as "Charles Foyles commonly called "Happy Jack," is not bad because of the use of the words "Happy Jack."
As to evidence of reputation of a prosecutrix upon an indictment for rape touching her chastity.
There is no error in a separate trial of one defendant on an indictment for felony against several, simply because the record does not show that the state asked a separate trial.
A new trial in a felony case will not be granted upon affidavit that the prosecutrix, giving evidence of the crime of rape upon her, has since admitted that the accused was innocent. Her own affidavit making such admission cannot be used to obtain such new trial.
It is not error for a prosecuting attorney, in an opening statement to the jury on a felony trial, to state the facts which he expects to be shown by the evidence.
Error to Circuit Court, Wetzel County.
Livy L Barrick and others were indicted for crime. Barrick was convicted, and brings error. Affirmed.
J. W McIntire, M. R. Morris, John Ross, Jr., and E. Earl McIntire, for plaintiff in error.
C. W. May, Atty. Gen., for the State.
Livy L. Barrick was sentenced to the penitentiary for 13 years upon an indictment in the circuit court of Wetzel county charging him and Fred Detwiler, Charles Pharet, and Charles F. Foyle with rape upon the person of Martha Harbert, a girl between 17 and 18 years of age.
It is said that the court erred in overruling a demurrer to the indictment. One ground of demurrer is, that Martha Harbert is not alleged in the indictment to be a female. We hold that her Christian name imports that she is a female. Who would understand it otherwise? Besides that, the indictment states that the defendants "in and upon one Martha Harbert *** did make an assault, and her, the said Martha Harbert, then and there *** feloniously did ravish and carnally know." The personal pronoun "her" tells that she is a female. Both these plain points were ruled in Taylor's Case, 20 Grat. (Va.) 825. I will add that, as the charge is that the defendants "ravished and carnally knew" Martha Harbert, it imports, in legal intendment, the feminine gender, as that could not be said of a man.
The other ground for the demurrer is that, in naming Charles Foyle, the words "commonly called 'Happy Jack"DD' are used. It is only a further description of identity of the person; only an alias, giving another name by which he is called, to meet proof. The law of criminal pleading allows the use of an alias name. 2 Cyc. 79. That name, "Happy Jack," is called by counsel an epithet, and it is said to have been used for derision and ridicule, hurtful to the accused. We do not see force in this. And how could it harm Barrick, when the name applied to another defendant?
The court overruled a motion to strike out all the evidence of Martha Harbert, because she was brought into court upon a cot and reclined upon it while testifying, stating that she was sick. Can counsel sustain the claim that a suitor in court is to lose the testimony of a witness because he appears in court on crutches, or in an invalid chair or cot? No authority is given us for such an extreme stand.
Complaint is made that the court refused to allow answers to some questions whether the witness was acquainted with the reputation of the prosecutrix. Some of the questions did not fix the time of the prevalence of the reputation before the offense, as they must. 4 Elliott on Ev. § 3101. And the questions do not show that the witnesses obtained their knowledge of reputation before the transaction; before the community was agitated, and perhaps divided, in sentiment and opinion as to such reputation; before the lis mota. 1 Greenl. Ev.§ 461 (1). It has been held that a witness, called to impeach a prosecutrix on a trial for rape, must confine himself to what he knew before the offense. State v. Forshner, 80 Am. Dec. 132; State v. Sibley (Mo.) 33 S.W. 167, 53 Am. St. Rep. 482. I regard this sound law, and think that it would overrule the point. But, aside from these considerations, there is another reason why there is no error in this matter, and that is, that the defense did not state what it was designed to show by the proposed examination. We may guess; but the witness did not answer to let us have his knowledge, nor was it shown what it was expected to develop. It was not stated that the witness knew anything on the subject. Many times has this been held a bar against such error. It is notable that counsel often overlook this matter in examination of witnesses. State v. Clifford, 59 W.Va. 1, 52 S.E. 981. In Handley v. Railroad, 59 W.Va. 419, 53 S.E. 625, it is said to be settled law. This objection applies to several other points of exclusion of evidence.
It is assigned as error that Barrick was separately tried, and that the record does not show that either he or the state asked a separate trial. The state can choose to try defendants jointly indicted either jointly or separately, if the court allows it. State v. Prater, 52 W.Va. 132, 43 S.E. 230. Moreover, no objection to a separate trial on the part of the prisoner appears in the record. If the point were tenable, that would have to appear; but he has no right to object. Nor is there anything in the fact that the record does not state that the state elected to have a separate trial. As there was a separate trial, we must assume that the state asked, and that the court granted, it.
It is objected that the record does not show that the stenographer who took the evidence was sworn. We will presume that he was. At any rate, the court heard the evidence, and, though it did use the stenographer's report of the evidence, the court certifies it as the evidence taken on the trial. There is no evidence in the record of the omission of an oath.
Upon a motion for a new trial Barrick filed the affidavit of his sister, Daisy Barrick, stating that the prosecutrix had admitted to her that the defendants were not guilty; that she had gone to the blacksmith shop, where she alleged the offense had been committed, of her own accord; that the defendants were no more guilty than she was; that she would not have prosecuted them, but for persuasion by a certain person, and would not prosecute the case further. A similar affidavit of Zora Bland was filed. Some other affidavits were filed stating that the prosecutrix declared that she would not have begun the prosecution but for such persuasion, and did not desire to go further with it. Barrick also filed an affidavit of the prosecutrix herself, made after the trial and pending a motion for a new trial, stating that she went to the blacksmith shop on the night of the offense of her own accord, and met Livy Barrick in the shop but that it was not true that he had sexual intercourse with her by force and against her will; that she drank too much, and that she had been persuaded to make the charge, and, having done wrong, wished to right it, as she could not rest and know that Barrick would go to prison for a crime which he did not commit. Martha Harbert had given evidence to the very reverse on the trial, swearing that Barrick forced her to drink liquor, made her drunk, kept her in the shop all night, stripped her clothing from her, and that all four defendants, being present, ravished her; one choking and holding her while others accomplished the act. All were drinking. After Barrick's trial, and before the decision of his motion for a new trial, Detwiler was tried, and on his trial Martha Harbert gave evidence of accusation, and utterly denied making the statements to Daisy Barrick and Zora Bland and others contained in the affidavits...
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