State v. Lohm
| Decision Date | 16 December 1924 |
| Docket Number | 5089. |
| Parties | STATE v. LOHM. |
| Court | West Virginia Supreme Court |
Submitted September 23, 1924.
Syllabus by the Court.
It is error for the trial court to overrule the motion of a defendant in a criminal case to require a private prosecutor to disclose his employer to the court and to defendant's counsel.
Where a representative of an organization. at the instance of several members thereof, procures affidavits, and turns them over to the prosecuting attorney for use in a particular case, mere membership in such organization does not per se disqualify a juror in that case.
Upon the voir dire examination of jurors who were members of such organization, and otherwise qualified to serve on the jury it appeared that they had never heard the charge against the accused discussed in any way, had never taken any part in securing evidence for or in aiding the state, knew nothing about the facts in the case, and were sensible of no bias against the accused. No evidence being offered from which bias or prejudice could be inferred, it was not error for the trial court to overrule a motion of the defendant to exclude such jurors from the panel.
At a trial for statutory rape, the prosecuting attorney, having evidence of several sexual acts between the prosecutrix and the defendant, may not be required, on motion of defendant, made at the beginning of the trial, to announce at that time the particular act upon which the state expected to rely for conviction. He may withhold his election until the close of the state's case.
In a prosecution for a sexual crime, the admission of evidence that the defendant gave to the prosecuting witness intoxicants, not only upon the date of the substantive offense, but upon other occasions when sexual acts were committed or attempted, is not error.
If a prosecuting attorney makes a statement in his argument to the jury not warranted by the evidence, and if such a statement is calculated to inflame the minds of the jury against the defendant, and disturb the calm deliberation of the jury so essential to a fair verdict, and the trial court upon motion refuses to instruct the jury to disregard such statement prejudice to the defendant will be inferred.
Error to Circuit Court, Harrison County.
A. L Lohm was convicted of statutory rape, and he brings error. Reversed and remanded.
Robinson & Robinson and Carl W. Neff, all of Clarksburg, and Charles J. Schuck, of Wheeling, for plaintiff in error.
E. T England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
Defendant Lohm, seeks to reverse the judgment of the criminal court of Harrison county, by which he was convicted of the crime of rape upon a girl under the age of 16 years, and sentenced to serve 15 years in the pentitentiary. The judgment was the result of a second trial of the accused, the jury in the first prosecution having failed to arrive at a verdict. Though counsel set out 22 assignments of error, based on practically every phase of the case, from the indictment to the refusal of the circuit court to award a writ of error to the criminal court's judgment, they confine themselves in argument to substantially 8 points. Although our determination of the case is not founded upon the evidence, a brief summary of the proof is essential to an understanding of certain of the points relied upon.
Defendant is a lawyer, and at the time of the alleged crime was well established in practice in Clarksburg. By reason of his professional, social, and political activities his trials upon so grave a charge were attended with unusual public interest and notoriety. The case, as made out by the state, is that defendant met the prosecuting witness for the first time on December 31, 1920, and from that time developed an illicit acquaintanceship with her, which relation culminated in an act of intercourse alleged to have occurred February 2, 1923. It was upon this particular act that the state elected to stand for a conviction. The girl was less than 16 years old at the time. Evidence of other acts of intercourse, notably one occurring January 29, 1923, was introduced, but after the state's election the offer of such evidence was justified by the prosecution merely as persuasive proof of the offense of February 2, 1923.
The defense was an absolute denial of any and all of the incriminating evidence offered by the state. It was charged that the first meeting of defendant and the witness occurred in defendant's home, and that their acts of intercourse took place at Terra Alta, where she lived for a time, and later in defendant's law office. Defendant says the girl was never in his home, that he never visited her at Terra Alta or any other place, and that she never was in his office, except that she might have been there with her mother in July or August, 1920, when he and the mother had an interview on a matter of business. In short, he denied having had intercourse with the witness on February 2, 1923, or at any other time. Defendant and other witnesses in his behalf undertook to prove his whereabouts and activities on the evenings of January 29th and February 2d, but of all this the jury must be held to have had the right to judge, and their verdict must control, unless we find that it was arrived at illegally.
A formal assignment of error relates to the sufficiency of the indictment, but counsel present no argument on the matter, and we deem the indictment sufficient.
We stated above that the public manifested considerable interest in the trials. This was especially true of certain organizations in Clarksburg. One was the Kappa Sigma Pi, seemingly a young people's organization fostered by certain of the churches. The other was the Ku Klux Klan. The latter, according to the affidavit of the chairman of its executive committee, was especially zealous in procuring affidavits in aid of the prosecution of the defendant. Such activity on the part of the above organizations together with the general public animus, which it is contended was directed towards defendant, constitutes the basis of his second assignment of error; that is, that he was improperly denied a change of venue.
Defendant was first brought to trial on March 22, 1923. The jury, not being able to agree, was discharged on the 24th. The second trial began on June 18th, on which date defendant filed his petition for a change of venue. He supported it with 13 affidavits, including his own, and 8 excerpts from newspapers and kindred publications, all indicative of the public interest in the prosecution. The affidavits are evidence not alone of public interest, but if they are to be credited to any degree, show also that the citizens of Clarksburg and the community entertained no little ill will and even prejudice against defendant. Such feeling was made manifest by the bitter remarks of the people who thronged the courtroom at the first trial, also by the conversations of those frequenting hotel lobbies and other public places. One affidavit is that of F. C. Wilkes, a special writer of syndicated articles for magazines. In pursuing a study of the Ku Klux Klan and its workings, he swears that he interviewed the chairman of the Klan's executive committee, and that that officer stated, not only that the organization initiated the prosecution, but that the membership in Harrison county were determined to back the case to the end. According to this affidavit, the executive committee at first offered defendant the opportunity to quit the city, and it was upon his refusal to do so that the case proceeded.
The newspaper articles were taken from the Searchlight (the official organ of the Ku Klux Klan, as shown by the record), issues of March 10, March 30, and March 31, 1923, Cumberland (Md.) Times, issue of February 17, 1923, Clarksburg Telegram, issues of March 21 and 22, 1923, Clarksburg Exponent, issue of March 22, 1923, and Fairmont (W. Va.) Times, issue of March 22, 1923. Each of these excerpts was in the nature of a sensational "story," telling of the revolting character of the alleged offense, and the Searchlight capitalized especially the work accomplished by the Ku Klux Klan in connection with the prosecution. The issues published at the time of the first trial carried copious quotations from the testimony. We cannot doubt that the articles published were calculated to arouse popular feeling among those who might read them. In the accounts of the testimony, the evidence as to the wild orgies and parties alleged to have been carried on in defendant's office were portrayed in great detail. Defendant's denial of the accusations received relatively less attention. One element, however, is lacking; nowhere do we find any mention of the extent of the circulation of the various publications in Harrison county, and, of course, if they were to affect public opinion, it was necessary that they be distributed. Except in the case of the two local newspapers, we have no right to assume that the publications mentioned had a wide circulation in the county.
The state did not lack for affidavits. A number of persons, including the sheriff of the county, were of opinion that a fair trial of the accused could be had in the county, and the chairman of the Ku Klux Klan's executive committee avowed that, while at the request of certain Klan members he had turned certain affidavits over to the prosecuting attorney, neither he nor the Klan was any more interested in the prosecution of the accused than any other class of good citizens would be.
After all the difference of opinion between the various affiants however, we are struck by the circumstance that in spite of the public feeling and newspaper reports, defendant did...
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