State v. John Golden.

• Decision Date: 14 March 1922
• Court: West Virginia Supreme Court
• Parties: State v. John Golden.

90 W.Va. 496

State

v.John Golden.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1922.

Decided March 14, 1922.

1. Criminal Law Where Prosecutrix Fixes Time of Assault

and States that She Became Pregnant as a Result Thereof, and Had a Miscarriage, Physician's Expert Testimony as to Age of Foetus Held Admissible to Show Pregnancy by Another than Defendant, as Tending to Show Consent.

In a prosecution for rape, where the prosecutrix fixes the time and place of the assault and testifies that as a result thereof she became pregnant, and had a miscarriage within three months from the time of the assault, and that she never had other sexual intercourse either before or after the time of the assault, testimony of the physician, who attended her miscarriage, to the effect that the foetus had been conceived "in the neighborhood of 3 to 4 months" prior to its delivery, is admissible as tending to show that the prosecutrix had become pregnant by some other person, and as tending to prove consent, thus sustaining defendant who swears he had intercourse with her by her free consent. (p. 503).

2. Same Where Prosecutrix Testified She Became Pregnant as Result of Rape and Had a Miscarriage Within Three Months, and Attending Physician Stated Sex of Foetus was Easily Ascertained. Other Physician' Testimony That Such Could Not be Ascertained Unless Four Months Old Held Admissible.

In such case, where the attending physician swears that the sex of the foetus was easily ascertained by casual examination, evidence of other physicians is admissible to prove that the sex of a foetus cannot be ascertained by such inspection until four months from the date of its conception, (p. 503).

3. Same Where Defendant Will Otherwise be Deprived of Material Evidence, Affidavit of Absent Witness Should be Admitted or Hearing Postponed.

Where it is plainly apparent that a misunderstanding has innocently arisen between opposing counsel as to the intro auction of an affidavit at the trial in lieu of the testimony of a witness who has been summoned but who has left the State on urgent business, and whose evidence is material and vital to the defense in a prosecution for rape, and by reason thereof defendant will be deprived of such evidence, the court should either permit such affidavit to be admitted as evidence, or continue the hearing until the attendance of such witness could be procured. (p. 505).

4. Same New Trial Aioarded Where Defendant Has Been Deprived of Material Testimony by Surprise. Where a defendant in a criminal case, without fault on his part, has been deprived of material and vital evidence in his defense by surprise, thus preventing a fair trial, the verdict should be set aside and a new trial awarded. (p. 508).

Error to Circuit Court, Mineral County.

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

Reversed and remanded.

H. G. Shores, J. Philip Roman and F. M. Reynolds, for plaintiff in error.

E. T. England, Attorney General, R. Dennis Steed, Assistant Attorney General and Arthur Arnold, Prosecuting Attorney, for the State.

Lively, Judge:

Defendant was convicted of the crime of rape and on the 3rd day of June, 1921, sentenced to confinement in the penitentiary for ten years, and prosecutes this writ of error.

The prosecutrix, Thelma Graham, who had been adopted in the family of Herbert Short and who was known as Thelma Short, was 14 years and 5 months old at the time of the alleged rape. She was fairly well developed physically and weighed 122 pounds. The defendant was 31 years of age, was married, of well developed physique and weighed 175 pounds. These two persons were casually known to each other, possibly having nothing more than a speaking acquaintance. The prosecutrix testified that on the 13th day of December, 1920, about the hour of 8 o'clock P. M., she

had been sent on an errand to a down town store and while performing that errand she observed defendant, who preceded her in a small Chevrolet touring car and waited for her on another street, where he stopped his car and asked her to come over, that he had something to tell her; that after some conversation, in which he asked her to take a drive with him, she finally consented and got in the front seat of the car with him and they drove out of town about three miles to a bridge on the turnpike which spanned a small stream, where he turned his car and came back in the direcion of Keyser until he reached a lane near the house of a Mr. Paris, which lane led up near to what was called the red barn. He stopped the car about 35 or 40 yards from the main road, which was at that time frequently traveled, automobiles passing in either direction continuously, and within about 100 yards of the residence of Mr. Paris and somewhat nearer to the red barn. She testified that after stopping the car and working a short time with some of the machinery, he got back in the car and "stood her up" behind the front seat and then climbed over the front seat, sat her down upon the rear seat of the car, sat down by her put his arm around her and "loved her a little", kissed her, and then by force and against her will laid her on the back seat and had intercourse with her. She tesified that she "hollered", was scared, and resisted until her strength gave out; that in about 10 minuter he drove away, having placed her in the front seat with him, and took her back to the city of Keyser, conversing with her upon general topics while on the way; that she alighted from the car near her home on an unfrequented street, and thence went to her foster parents' residence. After then explaining to her foster parents that she had been detained down town on the errand she had started to run. as an execuse for not returning earlier, she went into the kitchen, where she obtained a newspaper and was reading it when her foster mother came in. She told her foster mother she was going to bed and her foster mother said, "yes it is time to go to bed," and then she, prosecutrix, retired for the night. The reason she gave why she did not divulge the alleged crime was because, as she said, her foster mother had told her if she ever did anything of that kind she would be sent to some institution or home, presumably some place of correction for such girls. There was nothing unusual about her appearance; her clothing was in no way disarranged or torn, no marks or bruises about her body and nothing unusual in her demeanor, except as stated by Mr. Short, that she appeared stupid and "did not act like herself at all." She said that she was menstruating at the time of the assault and described the clothes she wore, including an absorbent pad. According to her testimony she became with child as a result of the alleged rape, but said nothing about the crime until about the first of March, when her condition impelled inquiry on the part of her foster parents, at which time she told them that a rape had been committed upon her by the defendant, as above set out. She swore that she never had illicit, carnal intercourse with any other person before or after this time. The version of the affair by the defendant is altogether different from that stated by the prosecutrix. He said he was standing in front of Evan's jewelry store on some day during Christmas week in company with Prank Githens and Elmer Wilson, when this girl passed them. A short time thereafter he got in his car and he again saw her on another street and he asked her if she would take a ride with him and she replied that she would like to go but was afraid because her people were watching her, and, after making an appointment to meet him on Orchard Street, he subsequently drove to that street, where he took her in the car and rode with her out to the bridge as testified to by her, and there turned and came back to the intersecting road next to the red barn, where he turned out of the main road up toward the barn, where the car was stopped and after asking her to get over in the rear seat he there sat down by her and '' courted her, '' hugged her, kissed her and asked her if she had ever been out with any other men, and, after some conversation along that line he made a proposition to her to which she consented, and that he had intercourse with her without objection "on her part, but with her consent readily given. He testified that while it was dark the car could be readily seen from the main road, which was nearby and frequented at the time, many automobiles passing along over it, or from the residence of Mr. Paris if anyone had come out, or from the barn which was somewhat near. The minutiae of the sordid affair were detailed by him. He further stated that after getting his car started out of the lane she got in the front seat, where he sat down by her and took her back to a place near her residence, and, at her request, put her off at a street near her home. He is in part corroborated by Frank Githens, who testified that he was in company with defendant near the jewelry store at the time designated. Thus it will be seen that the act of intercourse actually occurred near the time and place stated by the principal actors. The question then to be determined by the jury was whether the act was committed against the will and without the consent of the prosecutrix. On this question the statements of the two are diametrically opposed. There is nothing to corroborate the prosecutrix in that regard except a statement made by Alma Paris to the effect that sometime before Christmas, the exact date she was unable to state, whether it was the 12th, 13th or 14th, she heard some girl scream in the direction of the lane which was near her house but that she paid no attention to it, stating, "we hear those screams so often we do not think anything of it anymore." There is little probative value in this vague and general statement, both as to the time the screams were heard and their character. However, it was possibly admissible and might be considered by the jury...