State v. Beacraft
| Decision Date | 13 June 1944 |
| Docket Number | 9569. |
| Parties | STATE v. BEACRAFT. |
| Court | West Virginia Supreme Court |
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E. L. Luttrell and Hugh S. Byrer, both of Martinsburg, for plaintiff in error.
Ira J. Partlow, Acting Atty. Gen., and Ralph M. Hiner and Eston B. Stephenson, Asst. Attys. Gen., for defendant in error.
Benjamin Beacraft was indicted and convicted in the Circuit Court of Berkeley County for the crime of statutory rape upon his stepdaughter, Rosa Butts, and sentenced to the penitentiary for an indeterminate sentence of five to twenty years. To the judgment of sentence, he prosecutes this writ of error.
The State filed a bill of particulars, which stated that defendant had sexual intercourse with prosecutrix for the first time shortly after Christmas, 1941, at Jones Springs in Berkeley County, and thereafter about every one or two weeks until her examination by Dr. H. R. DuPuy, Health Officer of Berkeley County, some time in February, 1943, shortly before defendant's arrest, in the vicinity of the Beacraft home, on one occasion at the home of prosecutrix's aunt, and on another at a roadside stand near Hagerstown, Maryland. The trial court having required the State to elect upon which occasion reliance would be had for conviction, the State elected the alleged occasion in the smokehouse cellar shortly after Christmas, 1941.
To prove the actual commission of the alleged crime the State relies upon the uncorroborated testimony of prosecutrix, an infant between fourteen and fifteen years of age who, the record discloses, was an incorrigible girl. At the time the alleged crime is claimed to have been committed, she resided on a farm near Jones Springs in Berkeley County, with her mother, Anna Beacraft, her brother, and defendant. She testified that shortly before Christmas, 1941, defendant attempted intercourse with her, which she termed incomplete; that shortly after Christmas, 1941, defendant had intercourse with her in the cellar of his smokehouse, to which they had gone to separate potatoes; and that thereafter the act was repeated about once a week until shortly before defendant's arrest on March 16, 1943, on defendant's farm and on two occasions when witness accompanied defendant away from home. Prosecutrix further testified that she feared her stepfather; that he threatened her with bodily injury if she told of their alleged relations; that he worked her hard and on occasions had whipped her; and that defendant told her that if she disclosed the relations between them, she would go to the reform school and he to the electric chair. This testimony was categorically denied by defendant on both direct and cross-examination.
Lee White, a neighboring orchardist, for whom prosecutrix and defendant had worked, and George Keesecker, at whose home defendant and witness had been, testified for defendant that prosecutrix had told them that she never had immoral relations with plaintiff, but "with a man in Baltimore". Amanda Rockwell, a defense witness and neighbor at whose house prosecutrix stayed all night on one of the several occasions she had run away from home, testified that prosecutrix stated to her: .
Defendant introduced the affidavit of Rosa Butts, obtained by defendant's counsel, which, among other things, stated that her stepfather "never at any time, had sexual intercourse with me nor did he ever attempt to", but testified that this statement was untrue, and that she made the affidavit because she feared defendant.
Anna Beacraft, Rosa's mother, testified that there was a smokehouse with a cellar thereunder, when defendant bought the home farm a number of years before prosecutrix claims the act complained of took place; that three years before the trial, which was at the May term, 1943, defendant and witness, assisted by prosecutrix, her brother, and Harvey Rockwell tore down the smokehouse and filled the cellar thereunder with stone from the foundation of an old house which had been destroyed by fire a few years before; and that during the winter of 1941-42, the Beacrafts kept no potatoes in the cellar. Harvey Rockwell and defendant testified to the same effect. On rebuttal the State introduced as a witness one J. W. Bell, who testified that a year before the trial he saw an excavation forty yards from the then location of the smokehouse in which strawberries were stored under a temporary cover. His testimony in this regard is rather indefinite. Prosecutrix, evidently in explanation of her former testimony, stated on rebuttal that the old smokehouse had been torn down when the Beacrafts moved on the farm, and that there remained an excavation about five feet deep, which had a canvas cover over it. This excavation, witness stated, was filled up with dirt shortly after the strawberry season was over in 1942.
Dr. DuPuy, county health officer, basing an opinion upon his examination of prosecutrix some time in February, 1943, shortly before defendant's arrest, testified that the girl had had sexual intercourse fairly regularly a number of times over a period of months. The record contains no contradiction of this testimony.
Initially we are concerned with the question raised by the sixteenth and eighteenth assignments of error whether the record contains sufficient evidence from which the jury could find beyond a reasonable doubt that defendant had sexual intercourse with prosecutrix on the first occasion set forth in the bill of particulars, to-wit, "a short time after Christmas, 1941." As heretofore noted, the State sought to establish the actual commission of the crime by the uncorroborated testimony of the prosecutrix only. She testified that the act was committed in the cellar of defendant's smokehouse, where they went to sort potatoes. That she had engaged in sexual intercourse frequently over a period of months is clearly established by Dr. DuPuy's testimony. This testimony, of course, does not establish that defendant committed the crime. It does, however, furnish an important basis, taken in connection with prosecutrix's testimony, for the State's contention.
In the Virginias a conviction for rape may be had on the uncorroborated testimony of the female, and unless her testimony is inherently incredible, her credibility is a question for the jury. State v. Rice, 83 W.Va. 409, 98 S.E. 432; State v. Golden, 90 W.Va. 496, 111 S.E. 320; Lee, The Criminal Trial in the Virginias, 2d Ed., Section 1417. See generally A.L.R. annotation to Noonan v. State of Nebraska, 117 Neb. 520, 221 N.W. 434, 60 A.L.R. 1118, 1125-1130. The rule applies though the testimony is flatly contradicted by the defense (State v. Driver, 88 W.Va. 479, 502, 107 S.E. 189, 15 A.L.R. 917) and conflicts with prosecutrix's purported statements to the witnesses White, Keesecker, Amanda Rockwell and those contained in her affidavit. People v. Slaughter, 33 Cal.App. 365, 165 P. 44.
Anna Beacraft, Harvey Rockwell and the defendant testified that the smokehouse over the cellar in which prosecutrix testified the crime had been committed had been removed some time before the date of the alleged crime and the cellar filled with stone. Is then prosecutrix's testimony, in the light of this evidence, inherently incredible? On rebuttal prosecutrix explains her testimony in chief. She stated that the old smokehouse had been torn down when the Beacrafts moved on the farm, and that there remained an excavation about five feet deep with a canvas cover over it. We cannot say that the prosecutrix's testimony in chief, coupled with the explanation contained in her testimony on rebuttal and that of Dr. DuPuy, is inherently incredible. That being so, there is, in our opinion, sufficient evidence for the jury to find beyond a reasonable doubt, which it evidently did, that defendant committed the alleged crime, and therefore the trial court did not err as set forth in assignments of error Nos. 16 and 18. The testimony of the prosecutrix not being inherently incredible, the jury had the right to believe her, and we think it would be improper for this Court to substitute its opinion for that of the jury and the trial court. The advantages possessed by the jury and the trial court, in appraising the weight to be given to her testimony, are manifest.
Error is assigned to the refusal of the trial court to propound four of five interrogatories submitted by defendant's counsel. The four refused involve reasonable doubt, presumption of innocence, and degree of proof, which are proper subjects for instructions. The trial court ex mero motu made ample inquiry of the jury on its voir dire. Such inquiry in a criminal case is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused. State v. Camp, 110 W.Va. 444, 158 S.E. 664.
In the second assignment of error defendant complains that the prosecuting attorney made the following statement, claimed to be inflammatory, objectionable and prejudicial: Defendant objected and excepted to these remarks. Generally, in a prosecution for rape, it is prejudicial error for the court to introduce evidence that defendant is a married man. State v. Dorton, W.Va., 24 S.E.2d 455. But any error in the prosecuting attorney's remarks has been waived by defendant. On direct examination he and his wife testified, in...
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