State v. Digman
| Decision Date | 17 October 1939 |
| Docket Number | 8960. |
| Citation | 5 S.E.2d 113,121 W.Va. 499 |
| Parties | STATE v. DIGMAN. |
| Court | West Virginia Supreme Court |
Wm. T. George, of Philippi, for plaintiff in error.
Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty Gen., for the State.
This writ of error was granted to a judgment of the Circuit Court of Harrison County declining a writ to the judgment of the Criminal Court of that county, sentencing the defendant Claude Digman, to the state penitentiary for a term of twenty years. Sentence was imposed on the twenty-fourth day of December, 1938, and followed a verdict of guilty based upon an indictment for rape, with a recommendation of mercy returned on the twenty-ninth day of November. The prosecuting witness was a young woman to whom the defendant had been married October 12, 1937. According to the State's proof Digman and his wife were together in a bedroom of a Clarksburg hotel on the night of December 23, 1937. A negro man, for whom Digman had sent between eleven-thirty and twelve o'clock, came to the room occupied by the Digmans and, in the presence of Digman and with his aid, had intercourse with Mrs. Digman over her protest and resistance. We think it is unnecessary to go into further detail.
Dealing with the assignments of error seriatim, the first is based upon the trial court's overruling a demurrer to the indictment. The indictment is in one count, was returned against both men, accused Digman of having ravished the young woman, naming her, against her will and by force; also, of being present aiding and abetting another to commit the same offense; and in addition charged that prior to the day and year named in the indictment he did unlawfully aid, abet, procure, hire and employ another to commit the offense charged. It will be seen that Digman was charged as principal in the first and second degrees and also as accessory before the fact in the single count which included accusations against another. While we cannot approve this form of indictment, we do not think that it is open to the question that it does not give the accused adequate information concerning the charge against him. It charges him with three offenses with averments so interwoven that a super-abundance of allegations would, perhaps, be more confusing than the lack of them. We are of the opinion that the indictment is sufficient. State v. Vaughan, 93 W.Va. 419, 117 S.E. 127, (Pt. 5 Syl.).
The second assignment has to do with the trial judge's refusal to strike out evidence relating to a sodomy which occurred at the same price, and at the same hour, and was participated in by two of the three persons there and then present. We do not think that the trial court erred in refusing to exclude this testimony of what may be spoken of as a coincidental occurrence with those described in the indictment. We think that the evidence objected to was practically inseparable from the evidence relating to the offense charged.
The third assignment of error is based upon the refusal of the trial judge to require the State to elect which of the offenses charged in the indictment would be submitted to the jury. Under the State's proof, there could be a proper conviction of but one offense--principal in the second degree to the crime of rape. Any other finding would constitute error, requiring the trial court to set the verdict aside. Election is simply to avoid confusion. It was unnecessary for that purpose in this case. State v. Vaughan, 93 W.Va. 419, 425, 117 S.E. 127, (Pt. 6, Syl.). There being evidence to sustain a conviction of but one of the offenses charged, there was no room for an election. The proper method of presenting the question involved would have been to have moved the court to instruct the jury that they, if convinced beyond a reasonable doubt, could find the defendant guilty only of the offense charged as...
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