State v. Franklin

Decision Date12 January 1954
Docket NumberNo. 10573,10573
Citation139 W.Va. 43,79 S.E.2d 692
PartiesSTATE, v. FRANKLIN.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. In the prosecution of an indictment charging that the defendant did carnally know the prosecutrix, not his wife, against her will and by force, the question whether prosecutrix consented to the intercourse is a material issue, notwithstanding the record discloses that the prosecutrix at the time of the alleged rape was under the age of sixteen years, the age limit prescribed by Code, 61-2-15, for the crime of statutory rape.

2. 'To sustain a conviction for attempted rape two things must be proven beyond a reasonable doubt--the specific intent to at once accomplish the crime, and an overt act in pursuant of such intent.' State v. Gill, 101 W.Va. 242, Point 1, Syllabus .

3. A person who is present, aiding and abetting another in the commission of an offense, is a principal in the second degree within the meaning of Code, 61-11-6, which provides, in part: 'In the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree.'

4. Under Code, 61-11-8, which provides, in part, that: 'Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows: * * *', the failure or prevention of the accused to commit the offense attempted is as much an element of the attempt to commit the offense as the immediate specific intent to commit the offense and an overt act in furtherance of such intent.

5. Point 2, Syllabus, State v. Collins, 108 W.Va. 98 , read in the light of the opinion and the facts therein and explained.

6. State v. Collins, 108 W.Va. 98 , and State v. Prater, 52 W.Va. 132 , distinguished.

7. In a criminal prosecution on an indictment which charges that the accused and another 'violently and against her will and by force unlawfully and feloniously did ravish and carnally know' the prosecutrix, a conviction of the accused of an attempt to commit rape had in a separate trial will be set aside by this Court on the ground that there was not sufficient evidence to sustain the conviction, where the only evidence contained in the record tends to show that the accused acted as a principal in the second degree in that he was present, aiding and abetting his co-defendant, in the commission of the crime charged in the indictment and not otherwise.

8. Code, 61-11-6, which provides, inter alia, that in the case of every felony every principal in the second degree and accessory before the fact, 'shall be punishable as if he were the principal in the first degree', simply provides how a person who acts as principal in the second degree in the commission of a felony shall be punishable.

9. In a prosecution for rape, in which the consent of the prosecutrix is in issue, the refusal of the trial court to admit evidence concerning the prosecutrix's character for honesty and concerning events which occurred after the time of the alleged rape, and evidence tending to show that prosecutrix falsely told her employer that she was a widow, and that she was wont to talk and 'visit with' every man who came into the place where she was employed, is not reversible error.

10. In a prosecution for rape, in which the consent of the prosecutrix to the alleged act of intercourse is in issue, the reputation of the prosecutrix as to chastity prior to the alleged rape is admissible.

11. It is reversible error for a trial court in a trial on an indictment charging the accused with having committed rape on the prosecutrix against her will and by force to refuse to admit evidence offered by the defendant to the effect that the prosecutrix was accustomed to keep late hours, and that on one occasion she was accosted by a police officer, who directed her to go home, because she was on a public street while immodestly and scantily dressed.

12. It is not error for a trial court in a criminal prosecution to refuse an instruction offered by the defendant, which is fully covered by another instruction, which the court gave.

13. In a prosecution for rape, an affidavit executed by the prosecutrix, in which she repudiates the testimony which she gave in the trial court, on the basis of which evidence the defendant was convicted, which affidavit is attached to the petition to this Court for a writ of error and was not in the record made before the trial court, will not be considered by this Court.

Sam Lopinsky, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Arden J. Curry, Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

Paul LeRoy (Leroy) Franklin, hereinafter designated as 'defendant', was indicted by the grand jury impaneled in the Intermediate Court of Kanawha County at the January term, 1952, of that court. The defendant, along with another, was charged with the rape of the prosecuting witness. The indictment was a joint indictment against the defendant and another person, and charged them with forcibly ravishing and carnally knowing the prosecutrix. The person charged jointly with the defendant was convicted in the intermediate court and sentenced for the offense. On this trial the defendant was found guilty 'of attempted rape as charged * * *', and judgment was entered on the verdict.

The defendant moved the trial court to reverse the judgment of conviction, set aside the verdict of the jury, and grant a new trial; and also moved in arrest of judgment. The trial court overruled the motions and sentenced defendant to an indeterminate term in the penitentiary of not less than one nor more than five years. The defendant then petitioned the Circuit Court of Kanawha County for a writ of error and supersedeas, which was refused on the ground that the judgment was 'plainly right'. To the order of the circuit court in refusing defendant a writ of error and supersedeas to the judgment of the Intermediate Court of Kanawha County, the defendant prosecutes this writ of error.

The prosecutrix, who the record shows was at the time of the alleged rape fifteen years, six months and seven days old, testified that she is one of fourteen children of a man and his wife who live near Ranger in Lincoln County, West Virginia. She came to Charleston in the summer of 1951 with a female companion in an automobile, which was operated by a male companion of her friend, who is referred to in the record as 'Van'. They stopped at a motel for the night, their male companion sleeping in a separate room and the prosecutrix and her female companion sleeping in another room. During the night the prosecutrix entered the room of the man in scant attire, but she testified that she entered his room for a cigarette; that nothing improper occurred while she was in the room; and that the room was dark at the time she was there. Thereafter, the prosecutrix was employed at several places in Charleston, but on account of her age, she was not retained as an employee.

On the night of September 15, 1951, the prosecutrix states she was waiting for her female companion, who came with her to Charleston and whose work ended about twelve o'clock midnight. The defendant and his companion, who is now under sentence, were standing on Summers Street in the City of Charleston, when prosecutrix walked along the street. She was accosted by either the defendant or his friend. They talked with her for a while, and, according to her testimony, ascertained that she was looking for employment. Defendant and his companion represented that they could obtain employment for her at a coffee shop in the east end of Charleston. This conversation resulted in the prosecutrix and the two men entering an automobile owned or in charge of the defendant, with defendant driving, and the prosecutrix and defendant's companion occupying the rear seat of the automobile. They drove up the Elk River road, and stopped near the municipal incinerator for a short time. Thereafter, on account of the lights and people travelling on the highway, they drove up the Elk River road to another point, where the alleged rape took place.

The State's evidence shows that the companion of the defendant had sexual intercourse with the prosecutrix; that during such act the ankles of the prosecutrix were held by the defendant; and that she attempted to get out of the automobile before the act took place, but she was pulled back into the automobile by defendant. The defendant's companion gave him a ten dollar bill. Defendant switched the ten dollar bill and gave the prosecutrix a one dollar bill instead, which she took out of her bodice and threw on the ground.

The defendant admits that he had the impression that they were going out for the purpose of prosecutrix having sexual intercourse with his companion. The prosecutrix and the two men then came back to the City of Charleston by a somewhat indirect route.

The prosecutrix upon her return to the City of Charleston called the municipal police department. At the direction of a member of that department prosecutrix went to City Hall, where she was taken into the office of a member of the police department where she related the story of the occurrence. A member of the department caused her to retire to another part of the room and remove an article of her underwear. The article was examined by the interviewing officer, who testified that the garment had considerable blood on it. The officer, after some lapse of time caused by difficulty in obtaining a competent physician to examine the girl, had her taken to a hospital, where she was examined by a physician. This physician testified that prosecutrix had considerable blood on her person; that her hymen and fourchette were torn or ruptured, and gave as his opinion that prosecutrix had...

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    ...point 1 of Smith v. Godby must be read in light of the facts contained in the body of the opinion. See, e.g., State v. Franklin, 139 W.Va. 43, 57, 79 S.E.2d 692, 700 (1953) (collecting cases). When so read, Smith v. Godby does not stand for the proposition that the reelection of a public of......
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