State v. Beacraft, No. 9569.

CourtSupreme Court of West Virginia
Writing for the CourtFOX
Citation30 S.E.2d 541
PartiesSTATE . v. BEACRAFT.
Docket NumberNo. 9569.
Decision Date13 June 1944

30 S.E.2d 541

STATE .
v.
BEACRAFT.

No. 9569.

Supreme Court of Appeals of West Virginia.

June 13, 1944.


[30 S.E.2d 542]
Syllabus by the Court.

1. Conviction for statutory rape may be based on the uncorroborated testimony of a prosecuting witness; and where her testimony is categorically denied by the accused and such denial is substantiated by statements of the prosecutrix, allegedly made by her prior to the trial and inconsistent with those made thereat, such inconsistent statements relate only to prosecutrix' credibility which is for jury determination, unless the prosecutrix' testimony at the trial is inherently incredible.

2. In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused.

3. In a prosecution for rape, evidence of acts prior and subsequent, identical or closely similar, to that upon which conviction is sought, is admissible to show that defendant entertained an improper disposition toward prosecutrix and to corroborate evidence of the particular act relied upon.

4. Refusal of the court to permit a witness to answer a question which, by its own terms and subject matter, taken in connection with facts and circumstances, already in evidence, shows its relevancy and materiality, is not available as error on a motion for a new trial, if the expected answer of the witness was not vouched on the record at the time of the ruling.

5. In a prosecution for rape the trial court's refusal to permit the jury to view the premises upon which the crime is alleged to have been committed is within the sound

[30 S.E.2d 543]

discretion of the court and does not constitute error.

6. On writ of error the instructions should be considered as a whole, and it is not reversible error to refuse an instruction where the subject matter thereof is fully covered by other instructions.

7. "Where in a criminal proceeding there is no error other than in the entry of the judgment imposing sentence, the judgment should be reversed and the case remanded for proper judgment of sentence to be entered by the trial court." State v. Fisher, W.Va., 27 S.E.2d 581, Pt. 5 Syl.

RILEY and LOVINS, JJ., dissenting.

Error from Circuit Court, Berkeley County.

Benjamin Beacraft was convicted of statutory rape, and he brings error.

Reversed and remanded.

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.

FOX, Judge.

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 un corroborated 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: "Damn him, [meaning defendant] I wish I had on him what Lucille [a girl whose father had been convicted of incest with her] has on her dady. I would send him so far he would never get back. I have not got that on him, so if I would tell that, I would tell a story on him".

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

[30 S.E.2d 544]

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 Bea-crafts 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...

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54 practice notes
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)[, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charle......
  • State v. McFarland, No. 16011
    • United States
    • Supreme Court of West Virginia
    • June 18, 1985
    ...the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944); see also syl. pt. 3, State v. Angel, 173 W.Va. 620, 319 S.E.2d 388 (1984); State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600, 608 (198......
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...See United States v. Magana-Arevalo, 639 F.2d 226 (5th Cir.1981). See also State v. Pratt, supra; State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 Whether the refusal of a trial court to permit individual voir dire of prospective jurors constitutes an abuse of discretion necessarily depends ......
  • State v. Kopa, No. 15708
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...request for a second jury view of the Trailduster, see W.Va.Code, 56-6-17 [1931], syl. pt. 5, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), see generally 88 C.J.S. Trial § 47 (Cum.Supp.1983) (granting or refusal of motion for jury view of object involved in criminal prosecution is......
  • Request a trial to view additional results
54 cases
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)[, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charle......
  • State v. McFarland, No. 16011
    • United States
    • Supreme Court of West Virginia
    • June 18, 1985
    ...the trial court and not subject to review, except when the discretion is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944); see also syl. pt. 3, State v. Angel, 173 W.Va. 620, 319 S.E.2d 388 (1984); State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600, 608 (198......
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...See United States v. Magana-Arevalo, 639 F.2d 226 (5th Cir.1981). See also State v. Pratt, supra; State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 Whether the refusal of a trial court to permit individual voir dire of prospective jurors constitutes an abuse of discretion necessarily depends ......
  • State v. Kopa, No. 15708
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...request for a second jury view of the Trailduster, see W.Va.Code, 56-6-17 [1931], syl. pt. 5, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), see generally 88 C.J.S. Trial § 47 (Cum.Supp.1983) (granting or refusal of motion for jury view of object involved in criminal prosecution is......
  • Request a trial to view additional results

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