State v. Hull.

• Decision Date: 14 January 1899
• Citation: 45 W.Va. 767
• Parties: State v. Hull.
• Court: West Virginia Supreme Court

45 W.Va. 767

State

v.Hull.

Supreme Court of Appeals of West Virginia.

Submitted November 30, 1898

Decided January 14, 1899.

(Dent, President and Brannon, Judge, concurring.)

1. Evidence Incompetent Evidence Criminal Law Reversal.

Where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudices such party; and if it may have prejudiced him, though it be doubtful whether it did or not, it will because for the reversal, of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be cause for reversing the judgment, (p. 777).

2. Evidence Expert Testimony Rape Criminal Law,

A medical witness who is examined as an expert in the trial of an indictment for rape, after stating that he had been called upon to examine the prosecutrix, and the result of his examination, will not be allowed to express the opinion to the jury that no girl would have voluntarily submitted to the suffering necessary to have brought about this result, (p. 774).

3. E viden ce Expert Testimony Opinion Evidence Criminal Law.

Where an injury relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled witnesses is not admissible, (p. 774).

4. E viden ce Expert Testimony Opinion Evidence Criminal Law.

While the admission in evidence of the opinions of experts necessarily give rise to very nice distinctions between facts and

45 7(57 f46 444 58 43 findings, it nevertheless does not annul the rule of law, axiomatic with reference to them, as well as to all witnesses, that they must not: be so examined as to substitute their opinions for the verdict, and thus usurp the peculiar province of the jury. (p, 776).

Error to Circuit Court, Berkeley County.

Grant Hull was convicted of crime, and brings error.

Reversed.

Flick, Westenhaver & Baker, for plaintiff in error. Edgar P. Rucker, Attorney General, S. G. Pitzer and Edwin M.Keatley, for the State.

English, Judge:

On the 13th day of September, 1898, Grant Hull was indicted in the circuit court of Berkeley County, for the crime of rape, charged to have been committed upon one Ella May Glessner. The plea of not guilty was interposed, and on the 16th day of September, 1898, a jury was sworn in the cause. On the 17th of the same month they found the prisoner guilty as charged in the indictment, but recommended that he be punished by confinement in the penitentiary, and, thereupon, the prisoner moved the court to set aside the verdict and grant him a new trial, which motion, after consideration, was, on the 4th day of October following, overruled; to which action of the court the prisoner by his counsel excepted, and moved the court to set aside the evidence. Judgment was rendered upon the verdict, and the prisoner was sentenced to seven years' confinement in the penitentiary; and thereupon the prisoner applied for, and obtained, this writ of error. The errors relied on by the prisoner are as follows: (1) The circuit court should have set aside the verdict on the ground that the corpus delicti was not sufficiently proved. (2) The circuit court admitted improper testimony, against the objection of the defendant, materially prejudicial to the defense, and for this, on motion, should have set aside the verdict. (3) The circuit court should have set aside the verdict of the jury, and awarded the defendant a new trial, on the ground that the virdict was against the clear preponderance of the evidence.

Upon the question raised by the first assignment of error, as to whether the corpus delicti was sufficiently proved, the State necessarily relied upon the testimony of Ella May Glessner, who is discredited by her own story of the transaction; whose want of truthfulness appears to have been so notorious that her own mother would not believe her, as is shown by the letter written by her to Mrs. Hayes, in which, after speaking of the complaints her daughter had made against her, she says: "I want you to come immediately to see me. I want this talk stopped. I want the straight side of the story. * * * I want you to come right away, and tell me the straight thing of it. I know you will tell me the truth." The whole story of the alleged crime, as detailed by witnesses for the State, abound in inconsistencies and improbabilities. The girl who prefers this charge, and seeks to consign her stepfather to the gallows, or a long term of confinement in the penitentiary, out of spite, which appears to have been engendered by a letter written by her mother, exposing some of her falsehoods and fabrications in regard to the treatment she had received at the hands of the parties with whom she was making her home, begins her testimony with a statement which, although it may be immaterial, was regarded as important by her, which was that nobody started away from the prisoner's house with her; that the prisoner had gone away from the house to look at his potato patch, he said he was going to look at it; she saw him go; was standing on the porch when he went out. On cross-examination she says: "I did not start with Grant. It was four o'clock when I started." She also says: "Grant asked Frank to go with him when he left. He said. 'No; I will go to the doctor's with you.' That was a half hour before I went to the house." This testimony is directly and plainly contradicted by several witnesses. First. Mrs. Mary Hull, the mother of the prisoner, testifies as follows: "I have made my home with the prisoner for several years. Was living there on Sunday, July 24th. It was twenty minutes past four o'clock when I came out of Mrs. Hull's room, and Ella left about four minutes after I came out. Grant and Ella went away together. He was a couple steps ahead." Mrs. Glessner also, in her testi-mony, says: "I was at Hull's house on the Sunday in question, and Ella was there also. It was something after four o'clock when she left the house to return home. I was on the porch when she left. I didn't know who left first. Mr. Hull said, 'I will go a piece of the way with you, as far as my potato patch.' She and he left together. I cannot say which was first." Frank Glessner, in his testimony, also says: "I was on the porch when they left [speaking of prisoner and Ella], and they went together." The only motive we can ascribe for this deliberated falsehood on the part of Ella is that she had accused the prisoner of making a similar assault upon her a year previous, and claimed to be afraid of prisoner on that account, and may have thought the story of former assault would be detracted from by her action in being too sociable aud friendly with the prisoner. But, let the motive have been what it might, she stands flatly contradicted by three witnesses.

Following the testimony of this prosecuting witness, she says: "I met Grant the first time after leaving the house at Hedges' orchard, I went catty-cornered through the cornfield to the road, and Grant was in the road where it runs to the woods. The summer before this, Grant came down to Mrs. Hayes', and asked me if I could go up with him. He took me up through Ropp's woods, and tried to do the same thing. I hollered, and my mother came running up. He gave me a quarter, and I gave it to my mother." Now, when we turn to the testimony of Mrs. Grant Hull, she says: "I have heard the story of what Ella says happened a year before this occurrence. It is not true, nothing of the kind ever happened. I never heard anything of this kind." This witness says she told Mrs. Hayes about two months afterwards, but Mrs. Hayes, when on the witness stand, does not confirm her. Now, it is apparent that this story, which was brought out on cross-examination, was fabricated and detailed to account for the remarkable conduct on her part, which was described by her in detailing her evidence in chief. She says: "I met Grant near the end of Hedges' orchard. He was in the road. I shook hands with him, and give him good-bye, and asked him over. That was a field and a house distant from Grant's house. He said, 'All right'; he might be over in a few weeks. He went on towards his home, and I went in the opposite direction." Now, after this friendly parting, the prisoner taking the road towards home, it is somewhat remarkable that in a few minutes afterwards he should be found pursuing her in McDowell's woods, and halting her in a threatening manner; telling her, if she did not halt he would kill her; and that she should take off her hat, and start to run fast. Would it not be more reasonable to suppose that if the prisoner had any such designs upon this girl, he would have walked along with her to McDowell's woods, instead of telling her good-bye, and starting on the road leading to his home? And even if he had pursued her, as she said he did, would he, after his recent friendly parting with the girl, have accosted her in the rude and threatening manner testified to by her? Such conduct would be not only unnatural, but foolish and unaccountable.

Coming next to the story this witness tells of what transpired in McDowell's woods, can you say it bears the impress of truth? She says: "He says, 'Come here!' and I says, 'No, sir.' I told him I must go home. And he walked up, and caught me by the arm, and says, 'Come up here in the woods; I have something pretty to show you.' And I says, 'No, sir.' And so he took me up in the woods, and done what he pleased. He caught hold of my dress sleeve, and pulled me along. I pulled and tore my dress sleeve. I hollered 'murder!' I jerked, and tried to get awav from him, but he would not let me go. * * * He was about half an hour doing it. He just took and done what he pleased, and he tore all my underclothes." Now, that this story was neither true nor well considered is apparent when we recur to the fact that she left the house of prisoner at four o'clock and twenty-five minutes. Mr. John D. Smith, in his testimony, says: "We left...