State v. Harrison

• Decision Date: 17 February 1925
• Docket Number: (No. 5184.)
• Citation: 127 S.E. 55
• Parties: STATE. v. HARRISON.
• Court: West Virginia Supreme Court

127 S.E. 55

STATE.

v.HARRISON.

(No. 5184.)

Supreme Court of Appeals of West Virginia.

Feb. 17, 1925.

(Syllabus by the Court.)

Error to Circuit Court, Jackson County.

Granville Harrison was convicted of assault with intent to commit rape, and he brings error. Judgment reversed, verdict set aside, and new trial awarded.

Lewis H. Miller and J. Luther Wolfe, both of Ripley, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

LIVELY, P. The indictment charges defendant with the crime of rape upon Ova Coleman, a female under 16 years of age. The jury returned a verdict of "assault with the intent to commit rape, " upon which the court sentenced defendant to confinement in the penitentiary for 5 years; that being the maximum punishment for attempt to commit a capital crime. Error is prosecuted to this court.

The errors assigned are in the admission of evidence; giving of instructions for the state; in refusal of peremptory instruction for defendant; prejudicial remarks made to the jury by the court; and refusal to set aside the verdict, because contrary to the law and evidence.

It will be necessary to detail the evidence, which is circumstantial in its nature, at some length.

The prosecutrix and her older sister were on a visit to some relatives near Watts Chapel on the left fork of Pocatalico river in Jackson county. Defendant and his family, consisting of a wife and three children, were temporarily at the house of the wife's father in the vicinity of Watts Chapel. A series of religious meetings were being held at the chapel. The prosecutrix, accompanied by her escort, Alf Huffman, her sister, "Freddie" Coleman, Hobson Harrison, Audra Harrison, Verba Kessel, Ralph Harrison, and perhaps some other young people, left thehome of Sherman Harrison to attend the night services at the chapel a mile or so distant on Monday evening in the latter part of January, 1923. She was on horseback, riding behind Huffman on his horse. On the journey Huffman rode behind a schoolhouse by the road and gave her a drink of whisky out of a bottle. They then rode with the others until they reached Faber's barn near the road, where she says she first saw defendant standing at the gate by the road; his horse being hitched near by. They all stopped there a few minutes in conversation, and defendant and Huffman exchanged horses, it appearing that the Huffman horse, being somewhat spirited, had thrown the prosecutrix and her escort, or they had fallen off, at some point before they reached the barn. She says defendant there offered her some whisky which he had in a jar, and she took "not very much"; he remarking that if she took the liquor offered "they would not bother her." Defendant and others present contradict her statement that defendant gave her liquor on that occasion. Defendant preceded the others to the church, and was in the road with another witness "trying out" the Huffman horse when they arrived. It is in evidence that the prosecutrix fell off the horse when they stopped at the church to alight. She says she lost consciousness just before she reached the church, and never regained her senses until about 4 or 5 o'clock the next morning, when she was at the home of Sanford Clendennin a mile or so from the church. She knew nothing of what transpired from that time until she awoke at Clendennin's home. It appears that her sister "Freddie" and the latter's escort entered the church as the prosecutrix and her escort Huffman stepped upon the lower step at the entrance. Neither the prosecutrix nor Huffman entered the church. After a few minutes the sister, being concerned at the absence of the prosecutrix, evidently aware of her intoxication, sent Voyd Casto out to see about her. He did not speedily return, and she and Verba Kessel left the church on the same mission. They saw defendant in the yard, and proceeded with him and a party of four or five other young people up the hollow above the church to look for the missing girl. The sister says that defendant refused to let her proceed, and said he, defendant, said "he knew where they was, and was guarding them to see that nobody went to them." The others testify that they did proceed up the hollow for about 100 yards, one of the party "hallooing" for Huffman, and that defendant made no remonstrance or effort to stop them, and they heard no such conversation between defendant and the sister. She sent a messenger after some relatives living near by to assist in the search, but they arrived after the girl had been found. She says defendant remarked to her when she said she would send for Sant and Uncle Boyd that "they couldn't get her." Voyd Casto, a witness for the state, says he came out of the church at the request of the sister to look for the prosecutrix, and saw her in the yard and talked to her. She appeared drunk, but said she was glad to see him, that he was her cousin, and she had wanted to see him for a long time. He saw defendant, Harrison, there and several other young people. He thinks Harrison started off in the direction of the hollow with the prosecutrix, but could not say if he went more than a few steps. At that time a "whole bunch" started off with them. In the party that went was Bo. Harrison, Alf Huffman, Waldo Games, Albert Harrison's boy (who was summoned as a witness), and perhaps his little brother. A few minutes later, while witness was talking to Shadie Harrison by the church, defendant came to them and asked for a match to light a cigarette. It was after this time that the sister and Verba Kessel came out and the party of young people accompanied by defendant went up the hollow looking for the prosecutrix. Boyd Coleman and S. L. Clendennin both went to the church upon solicitation by the sister, or of a messenger from her, to look for the prosecutrix, and when they got there Odbert Harrison, on horseback, upon coming down the hollow or small stream above the church had found her near the road about 100 yards from the church where she attracted his attention by a sound as if she was trying to vomit, and had with difficulty taken her up in front of him on his horse and brought her down to the church, from which place he took her in the manner indicated to Clendennin's home a mile or more down the stream. Defendant was at the church, and, joining the party going down the road, some controversy arose over the affair between defendant and Boyd Coleman, an uncle of the prosecutrix, the controversy degenerating into a fight. John Casto was in the church, and observing the young people go out followed them to learn what was trans-spiring. Near the entrance he met the sister and another girl or two, and was told by the sister that "There is some of them got my sister drunk up the hollow here and won't let none of us go to her." (What the sister said to the witness was objected to, but the court let it go to the jury.) Thinking his boy Voyd, who had left the church as before detailed, was a participant, he proceeded up the hollow hallooing for him. A short distance up the hollow he was met by defendant in company with a young man whose name witness did not know, and he inquired for his boy, and was told by defendant that, he was at the church, and he, defendant, would go there with him to find the boy. Witness said he saw the bulk of something lying across the branch, but he could not tellwhat it was. He told defendant that the sister had accused him of having made the girl drunk and would permit no one to go to her, which charge defendant then denied. Defendant says he met this witness a short distance from the church at the stream as detailed, and that he had gone there at the direction of the boy to get a drink of water, and was on that errand when the witness came up. One more witness is important in connection with the presence of the prosecutrix and defendant up the hollow near the stream. This witness was O. L. Boggess, who, after having heard that the prosecutrix was missing, and a search was being made for her, left the church, after services were over, for his home, accompanied by the preacher and his (witness') 18 year old daughter. While traveling the road leading up the hollow they heard a "powerful" noise across the stream, which the preacher interpreted as being made by a horse. He told the preacher and daughter to walk on. He then went in the direction of the noise with his lantern which was lit, and saw some one whom he judged to be Alf Huffman run up over the hill. He said he saw defendant in a reclining position against the bank, and the prosecutrix lying some 10 or 15 feet from him on the ground. Witness was within 10 to 20 feet away from them, and said that defendant was looking at the witness. Witness spoke no word to either, nor was he spoken to by them. Witness then turned away and overtook the preacher and daughter, and went on home. He did not advise those searching for the girl, some of whom were near. His excuse was that he had been informed that defendant forbade people to come to him. His story was rather unusual to say the least, but the jury had the right to believe or...