State v. Garten

• Decision Date: 21 September 1948
• Docket Number: 10020.
• Parties: STATE v. GARTEN.
• Court: West Virginia Supreme Court

49 S.E.2d 561

131 W.Va. 641

STATE v. GARTEN.

No. 10020.

Supreme Court of Appeals of West Virginia.

September 21, 1948

Syllabus by the Court.

1. Refusal of an inapplicable instruction is not error.

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 pursuance of such intent. Improper advances and indecent liberties do not necessarily imply such intent.' Pts 1 and 2, Syl., State v. Gill, 101 W.Va. 242, 132 S.E 490.

Harold B. Eagle and Eagle & Eagle, all of Hinton, for plaintiff in error.

Ira J. Partlow, Atty. Gen., and Chandler Curd, Asst. Atty. Gen for defendant in error.

LOVINS Judge.

Ervin Powell Garten was indicted in the Circuit Court of Summers County, West Virginia. The indictment charged defendant with attempting to rape a woman twenty-nine years of age. A jury trial resulted in a verdict of guilty as charged in the indictment, and defendant was sentenced to serve a term of one to five years in the penitentiary of this State. Defendant brings the case to this Court by writ of error.

Defendant is about twenty-four years of age, and on July 18, 1947, was employed by the Greenbrier Club near Hinton West Virginia. On that day he came to the City of Hinton, where he purchased and drank beer and whiskey. In the afternoon he was seen by two witnesses in the vicinity of the place where the assault took place. One witness testified that he was nude and the other that he was engaged in the act of masturbation.

The prosecutrix testified that she had taken three small children to the river to fish. While sitting on a small boat wharf on the river, prosecutrix saw defendant, unclothed, walk across a path leading to the river. She remained quiet, thinking defendant had gone away, but a short time thereafter defendant, still nude, approached the prosexcutrix, grabbed her and inserted his hand up and under her 'shorts'. Prosecutrix screamed and resisted defendant, whereupon he fled.

Defendant testified that on the day of the crime, he was no intoxicated that he had no recollection of being in the vicinity where the occurrence took place, and in this he is corroborated in a measure by the testimony of his wife and other witnesses.

On the day following, defendant quit the employment of the Greenbrier Club on account of a disagreement with the secretary of that club. Defendant and his wife went to a hotel in the City of Hinton, and remained there a short time, thereafter going to the home of defendant's father-in-law about five miles from Hinton, where he was arrested on or about July 20, 1947, and taken to the jail of Summers County.

After the arrest, the arresting officer took the prosecutrix to the jail of Summers County for the purpose of identifying defendant. On arriving at the jail, prosecutrix momentarily identified another man as the person who assaulted her, but, upon seeing defendant, who was in the room, she immediately and positively identified defendant as the guilty person.

At the conclusion of the evidence introduced by the State, defendant moved the court to strike the evidence, and direct a verdict, which was overruled, and the same motion was made after the defendant introduced his testimony, which was likewise overruled.

Nine instructions were tendered by the State and defendant, and all were given except defendant's instruction No. 5. Upon rendition and reception of the verdict, defendant moved the court to set the same aside, which motion was overruled and defendant was sentenced as above stated.

Defendant's assignments of error present two questions: (1) Should the court have given defendant's instruction No. 5; and (2) is the evidence introduced by the State sufficient to sustain the verdict?

Defendant relies on the case of State v. Perry, 41 W.Va. 641, 24 S.E. 634, as supporting his contention that defendant's instruction No. 5 should have been given. Defendant's instruction No. 5 reads as follows: 'The Court further instructs the jury that if they believe from the evidence in this case that the crime charged against the defendant rests alone on the testimony of the prosecuting witness, Gladys Richmond, then they should scrutinize her testimony with care and caution.'

Pt. 5, syl., State v. Perry, supra, reads as follows: 'It is error for the court to refuse to instruct the jury that it is their duty to scrutinize with care and caution the uncorroborated and contradicted testimony of a witness.' An examination of the opinion in the Perry case discloses that the testimony of the prosecutrix in that case was uncorroborated and was contradicted.

In the instant case the testimony of the prosecutrix is corroborated by other witnesses, who saw the defendant in the vicinity of the place where the criminal acts occurred. It is shown by one of these witnesses that defendant was unclothed, and by another that he was engaged in an abnormal sexual act. Furthermore, there is no contradiction of the prosecutrix' testimony. W...