State v. Grove

• Citation: 57 S.E. 296,61 W.Va. 697
• Court: Supreme Court of West Virginia
• Decision Date: 17 April 1907
• Parties: STATE v. GROVE.

57 S.E. 296

61 W.Va. 697

STATE

v.GROVE.

Supreme Court of Appeals of West Virginia.

April 17, 1907.

1. Rape — Indictment — Conspiracy to Commit.

An indictment charging a conspiracy, having for its object the commission of rape, and averring, in apt and sufficient terms, the commission of such offense, in pursuance thereof, is a good indictment for rape, under section 15 of chapter 144 of the Code of 1899 [Code 1906, § 42141, and not an indictment for criminal conspiracy, under sections 9 and 10 of chapter 148 of the Code of 1899 [Code 1906, §§ 4340, 4341], and does not charge both rape and conspiracy.

2. Indictment—Sufficiency.

An indictment against several persons, described in the order, noting the finding and return thereof, as an indictment against one of them, is good against the person named in the order.

3. Same—Indorsement.

Want of the usual memorandum on the back of an indictment, "a true bill, " signed by the foreman of the grand jury, does not vitiate the indictment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 139.]

4. Criminal Law—Plea—Issue.

An order in a criminal case, reciting the entry of a plea of not guilty, by the prisoner, and then saying, "and the attorney for the state doth the like, and issue is joined thereon, " shows that the issue was made up, and will sustain a judgment.

5. Same—Declarations of Conspirators.

In a case in which the evidence establishes a prima facie case of conspiracy, acts and declarations, done and made by the parties, in pursuance thereof, not in the presence of one another, are admissible in evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 989-1001.]

6. Same—Bad Character—Evidence.

It is error to admit evidence of the bad character or reputation of a prisoner, who has not put his character in issue.

[Ed. Note.—For cases in point, see Cent-Dig. vol. 14, Criminal Law, §§ 836-846.]

7. Witnesses —Impeachment—Bad Character.

Bad reputation, as a basis for impeaching testimony, must be limited to reputation as to truth and veracity.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1114-1132.]

8. Same—Instructions.

An instruction, given in the trial of an indictment for rape, telling the jury they may find the prisoner guilty, without finding that he conspired with others to commit the offense, as averred in the indictment, if, from the evidence they believe him guilty, is unobjectionable.

9. Same.

It is error to give an instruction, on the trial of an indictment for rape, directing particular attention to certain facts, attendant upon the act of sexual intercourse, as stated by the prosecuting witness, including her denial of consent and affirmation of resistance to the extent of her ability, mere conclusions or opinions, not binding upon the jury, and ignoring all the other evidence bearing on the question of consent, and telling the jury they should find for the state, if, from the evidence, they believe them to be true.

10. Rape—Instructions.

An instruction, requested on a trial for rape, to the effect that, if a Woman consent to sexual intercourse through fear of anything oth er than death or great bodily harm, the man with whom she so has such intercourse is not guilty of rape, is properly refused.

(Syllabus by the Court.)

Error to Circuit Court, Greenbrier County. Paxton Grove was convicted of crime, and brings error. Reversed.

T. N. Read, Osenton & McPeak, and W. H. Sawyer, for plaintiff in error.

C. W. May, Atty. Gen., for the State.

POFFENBARGER, J. Paxton Grove, seeking relief from a judgment of the circuit court of Greenbrier county, sentencing him to imprisonment for a period of seven years on a conviction of the crime of rape, assigns a number of errors in the rulings of the court.

By a demurrer and a motion to quash, he challenged the sufficiency of the indictment, which charged him, together with three other persons, with having unlawfully combined, conspired, confederated, and agreed to assault, ravish, and carnally know one Nora Breeden, by force and against her will, and with having unlawfully and feloniously, in pursuance of such agreement and conspiracy, assaulted, ravished, and carnally known, by force and against her will, the said Nora Breeden. The objection to the indictment is that it charges a conspiracy, under sections 9 and 10 of chapter 148 of the Code of 1899 [Code 1906, §§ 4340, 4341], known as the "Red Men's Act, " and also rape, under section 15 of chapter 144 of the Code of 1899 [Code 1906, § 4214]. An indictment charging conspiracy and murder, very similar to the one here under consideration, in respect to the matters relating to conspiracy, was held good in State v. McCoy and Others (decided by this court at the present term) 57 S. E. 294. This indictment does not purport to have been found under the "Red Men's Act." The purpose of that statute was to create new offenses. A conspiracy to inflict any sort of punishment or bodily injury was made a misdemeanor, and the infliction of any sort of punishment or bodily injury in pursuance thereof was made a felony. This statute contemplates punishment, or injury not felonious under other statutes or by the common law. This indictment does not charge a conspiracy to inflict punishment or bodily injury in general terms. It charges a conspiracy to do that which, by the common law, as well as by our statute, is a felony. In the commission of that offense, a conspiracy may be involved and included, not as the substantive offense, punishment for which is sought, but as a ground or means by which some of the parties charged with rape may be convicted. A good illustration of this is the case of State v. Prater, 52 W. Va. 132, 43 S. E. 230, in which we said, at page 145 of 52 W. Va., at page 235 of 43 S. E.: "As this is not a prosecution for conspiracy, as a substantive crime, but for murder inwhich the conspiracy, if any, takes a subordinate place, and is to be considered merely as one of the facts tending to prove the guilt of the accused, the admissibility of the acts and declarations in question is to be considered in the light, not only of the law relating to conspiracy, but also in that of the other principles just mentioned." The charge of conspiracy may not have been necessary, but, if not, it may be treated as mere surplusage. After its elimination therefrom, what remains would sufficiently charge the crime of rape. The court did not err in refusing to quash the indictment on this ground.

The want of any indorsement on the indictment of the words "a true bill, " signed by the foreman of the grand jury, is also relied upon. The record discloses an order, showing the impaneling of a grand jury, their charge by the court, and their return and presentment of an indictment "against Pack, alias Paxton Grove, for a felony, a true bill." Although the indictment is against several, and was recorded as an indictment against only one of the several persons, it is good as to him. State v. Compton. 13 W. Va. 852; Drake & Cochran's Case, 6 Grat. (Va.) 665. As to the necessity of the indorsement of the memorandum, "a true bill, " on the back of the indictment, and the signature of the foreman thereto, a doubt is expressed in State v. Heaton, 23 W. Va. 773. Price's Case, in 21 Grat. (Va.) 846. expressly decides that the want of such an indorsement does not vitiate an indictment. The same conclusion was reached in White v. Commonwealth, 29 Grat. (Va.) 824. The opinions in both cases were written by Judge Moncure, and his reasoning amply satisfies us of the correctness of his conclusion. Hence there was no error in the overruling of the motion to quash, in so far as it was based on the want of such a memorandum.

A motion in arrest of judgment was based upon alleged want of an issue made up on the record. The order shows that the defendant entered his plea of not guilty, and then says: "The attorney for the state doth the like, and issue was thereon joined." The contention is that this brings the case within the decisions in State v. Douglass, 20 W. Va. 770, State v. Brookover, 42 W. Va. 292, 26 S. E. 174, and numerous others referred to in those decisions, holding that an issue made up by the pleadings is essential to the validity of a judgment. The order in this case, however, says issue was thereon joined. There could not have been a joinder ha issue upon anything other than the plea of not guilty. No other plea was entered. The recital that the attorney for the state entered such a plea is an absurdity, and affords no ground for the contention that it overthrows the sensible portion of the order and proves that no issue was made up. Though the order lacks formality, we think it shows that the parties were at issue when the trial was had. It impliedly says both parties put themselves upon the country. Otherwise it cannot be true, as stated in the order, that issue was joined on the plea. The affirmation that issue was joined is broad enough in its terms to include the doing of all that was necessary to effect a joinder of issue. This construction of the order is sustained by those decisions which hold a recital in an order that the jury were sworn the truth to speak upon the issue, or of and upon the premises, has the same effect as if it had set forth in full the oath administered. See State v. Kellison, 56 W. Va. 690, 47 S. E. 166; State v. Musgrave, 43 W. Va. 672, 28 S. E. 813; State v. Ice, 34 W. Va. 244, 12 S. E. 695; State v. Sutfin. 22 W. Va. 771; Lawrence's Case, 30 Grat. (Va.) 849.

It is necessary to the disposition of certain assignments of error, relating to the admission of evidence, concerning the acts and declarations of some of the parties jointly indicted, to disclose here some of the material facts which the evidence tends to prove. The prosecutrix, together with a man named Hunter Merica, alighted from a railway train at the station at Ronceverte near midnight. They claimed to have eloped from...