State v. John Barker.

• Decision Date: 12 December 1922
• Citation: 92 W.Va. 583
• Court: West Virginia Supreme Court
• Parties: State v. John Barker.

92 W.Va. 583

State

v.John Barker.

Supreme Court of Appeals of West Virginia.

Submitted November 21, 1922,

Decided December 12, 1922.

1. Criminal Law Verdict Not Reversed. Unless Clearly Unwarranted by Evidence.

Where a verdict in a criminal case is sought to be set aside by the accused on the ground that the evidence is not sufficient to support the verdict, the opinion of the court which tried the case is entitled to great weight, and the appellate court will not reverse unless it is clear that the verdict is unwarranted by the evidence and that the jury was influenced by bias, passion, prejudice or some ulterior motive, (p. 588).

2. Same Exclusion of Evidence to Prove Admitted Fact Not Error.

Where a fact has been proven or admitted by the prosecution in the trial of a criminal case, it is not error to refuse to admit evidence offered by the accused to prove the fact alread established, (p. 589).

3. Same Instructions Should not be Given Where no Evidence Tending to Prove Facts Upon Which Based.

Instructions should not be given when there is no evidence tending to prove the facts upon which they are based. Such instructions tend to mislead the jury by withdrawing their consideration from the issues involved, (p. 590).

4. Same Temporary Separation of Juror in Presence of Attending Officers Held Not Ground for Setting Aside Verdict.

It is not every separation of the jury in a criminal case, though improper and irregular, that will warrant the setting aside of the verdict, if it be against the accused; and where one of the jurors who were retiring from a dining room at a hotel, in charge of the proper officers, steps out of line, with permission of one of the officers, and in his sight and hearing and near him steps across the lobby and purchases a cigar from the hotel clerk, is furnished a light therefor by a bystander, has no conversation with any one, and immediately goes back to the other jurors, accompanied by the officer, such separation is not sufficient to set aside a verdict against the accused, although it may appear that a large number of men were in the lobby, possibly discussing with each other the incidents of the trial, it also appearing that those in the immediate presence of the juror could not remember what, if anything, had been said in his hearing, (p. 591).

Error to Circuit Court, Morgan County.

John Barker was convicted of rape, and he brings error.

Affirmed.

J. Hammond Siler and Luttrell & Rogers, for plaintiffs in error.

E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Lively, Judge:

Appellant, John Barker, was convicted of rape upon Mary Gallaher, a girl eleven years of age, large for her age, and on April 5, 1922, sentenced to the penitentiary for five years. The jury recommended mercy in its verdict. This writ is to review that judgment.

Defendant was married, 39 years old and was working for E. R. Gallaher, the girl's father, and had completed 12 days of labor which he had contracted to exchange for a double barrelled shot gun owned by his employer. The alleged crime took place between 5 and 6 o'clock, October 8, 1921. The girl, her two brothers, Paul aged about 14, Joe about 8 years old, and the accused returned to the Gallaher home in the late afternoon from a near by railroad where the accused and Paul had been to get some cross ties, accompanied by the two children. The latter two went into the house, and the accused went to feed the pigs. Later, Mary went down the hill to drive up the milk cows, and she says the accused was sitting on a stone at the foot of the hill about a quarter of a mile from the house, and as she passed him he caught her and committed a rape upon her. She then went on after the cows, which were near by, and drove them home. When she returned to the house, supper was ready, and her sister Emma, 16 years of age, who had cooked supper, her three brothers, Prank, aged about 22, Paul, Joe and her father, were preparing to sit down to the evening meal. The accused had washed and was combing his hair, and was in the kitchen which was used as a dining room also. The testimony of all of the family, including the girl, as to what then occurred, is practically the same. When she entered the room she was crying, and her father asked her what was the cause, and she replied, "That dirty devil over there, (pointing to accused), caught me." She said she told her father Mr. Barker caught her down at the foot of the hill. The father, who wras afflicted with a carbuncle on one of his legs, and who had been tying on the bed with his shoes off, struck accused with his fist and knocked him down, struck him again on the head two or three times with his fist and then attempted to stomp him in the face with his bare heels; accused regained his feet exclaiming, "Dolph, don't kill me, I will take prison," or "I will go to the pen," or some such exclamation, jumped over the stove and ran out of the house, disappearing in the gathering twilight. Defendant's version of the dining room scene is practically the same, with these exceptions: he says that when Mary came in crying her father asked her what was wrong, and she replied, "You know what is wrong, that man (pointing at me) insulted me." He denied having said anything about "going to the pen"; or rather he said he had no recollection of saying any words of that import, that the blow "knocked all the sense out of me." The father went to Berkeley Springs, 27 miles away, on the following Monday (the alleged crime having been committed Saturday near dark) to obtain a warrant for the accused. He did not go on Sunday for that purpose, giving as a reason that he did not think he could obtain a warrant on the Sabbath. The sheriff accompanied by an officer and the father then drove to the house of the accused, and after a close search finally discovered him hid in a corner of one of the rooms covered over with some old comforts, and placed him under arrest. Defendant says he did not know it was the sheriff after him; supposed it was "moonshiners" coming to kill him.

At the suggestion of the sheriff, Dr. J. R. Kirk was sent to make an examination of the girl. He arrived on the 11th (Monday) or the 12th (Tuesday), and found her female organs torn, "the lower part torn quite a lot, showed there had been some force of some kind used there." He found the womb had been torn some; and what is known as the "hymen," the membrane of the vagina, had been torn open. He said the wounds were of recent occurrence, within two or three days. On cross examination he said the wounds could have been made by some blunt instrument in the hands of the girl. The girl stated that four or five years before, a boy of sixteen had forced her, and had intercourse with her. The doctor was asked if that would not have ruptured the hymen, and replied that it was possible that the hymen was not then broken, but not probable, depending upon the size and force.

Defendant denied having committed the crime. His theory was that the girl's father and brothers were making moonshine liquor, and he says he visited stills seemingly owned and operated by them in the near vicinity of their home in their company, and it was to close his mouth (he says he had been telling people G-allahers were making liquor) and remove him from the neighborhood that the charge of rape was preferred against him. He says that all the family, the father, boys and girls (the mother was dead), were habitual drinkers of moonshine liquor, and that they "fed me up on it" while he worked there. This testimony is denied by the Gallaher family. A search warrant in the hands of the sheriff brought no tangible evidence of illicit distilling by the Gallahers, and the grand jury investigated the charge without finding an indictment. The investigation of the officers developed suspicion that illicit distilling had been carried on in that vicinity, and possibly with the knowledge of the father, but by whom and when, wras rather indefinite. The sheriff visited the Gallaher home with his search warrant on the 13th, five days after the alleged offense, and saw the girl. He was asked what she was doing, and replied that she was out playing around the yard, when an objection was interposed by the state and sustained. One of the points of error is based on this action of the court.

Dr. Kirk (examined for the defense), whose practice extended over 21 years, said that defendant's intellect and mentality were below the average; that he was not insane nor a lunatic, and knew the difference between right and wrong. Accused is six feet two inches in height, weight 124 lbs. and wears a No. 6 5/8 hat. His mother says his mind was not well developed, that a boy of 12 years of age had more sense than he had; that he had his head hurt while working as a brakeman on a railroad train, and when he got whisky he acted as if he was crazy. His wife says that when he came home from Gallaher's on the Saturday night of the alleged crime, he was sick and weak, but does not say that he was then intoxicated. Defendant says he had been drinking on that Saturday but was not drunk and knew what he was doing.

The girl says that on the night of the crime she went to bed as usual, and next day performed her usual domestic duties about the house, and continued to do so, without much in- convenience, except that she was sore, and it hurt her to go down hill. Other members of the family say she did not seem to suffer greatly and went about her usual duties on the days following.

The assignments of error are: (1) Refusal of the court to direct a verdict for defendant; (2) Refusal to permit sheriff Dyche to testify as to the1 physical condition of Mary Gallaher on October 13, 1921; (3) giving of instructions for state,...