State v. Friedman, 9204.

• Citation: 18 S.E.2d 653
• Decision Date: 03 February 1942
• Docket Number: No. 9204.,9204.
• Court: Supreme Court of West Virginia
• Parties: STATE . v. FRIEDMAN.

18 S.E.2d 653

STATE .
v.
FRIEDMAN.

No. 9204.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1942.

Syllabus by the Court.

Code, 57-3-6, requires an accused who voluntarily becomes a witness in his own behalf to state, in response to questions propounded on cross-examination, whether or not he has been convicted of other offenses.

Error to Circuit Court, Taylor County.

Sherman Friedman was convicted of sodomy, and he brings error. Judgment affirmed.

Jed W. Robinson, of Grafton, Wm. T. George, of Philippi, and James C. Holt, of Grafton, for plaintiff in error.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for defendant in error.

KENNA, Judge.

The plaintiff in error, Sherman Friedman, was convicted in the Circuit Court of Taylor County of the statutory offense of sodomy and the prescribed sentence imposed. In prosecuting this writ, he relies

[18 S.E.2d 654]

upon seven errors he avers the trial court committed: (1) In not setting aside the verdict as contrary to the law and the evidence; (2) in admitting the testimony of a police officer and deputy sheriff concerning statements made to them by the accused while in the Taylor County jail; (3) in requiring the accused to respond to a question propounded on his cross-examination concerning a former conviction of a misdemeanor; (4) in permitting that question to be asked and requiring it to be answered when the character of the defendant was not in issue; (5) in approving state's instruction number one defining the offense without including the emission of semen; (6) in giving state's instructions numbers two and three attempting to define reasonable doubt; and (7) in declining defendant's instructions eight and nine, the first dealing generally with the jury's deliberation and the second with the convictions of the individual juror, in effect, being the often discussed "hanging instruction".

We have carefully examined an unavoidably revolting record and shall attempt to fully discuss only what we regard as the essential question presented.

The lack of specificness in the first assignment robs it of consequence.

Point two is based upon a statement made by Deputy Sheriff Guth to the accused in the county jail of Taylor County on August 5th, the day upon which the accused was arrested the second time, the alleged offense having occurred August 2nd just before midnight, to the effect that it would be much better for the accused to state the truth concerning the occurrences with which he stood charged. According to the testimony of the officer, Friedman admitted the occurrence with the exception of having threatened or coerced the prosecuting witness to take part. Friedman denied having admitted his guilt to the officers, and yet insists that the...