State v. Moubray, 10597
| Court | Supreme Court of West Virginia |
| Writing for the Court | HAYMOND; RILEY |
| Citation | 81 S.E.2d 117,139 W.Va. 535 |
| Parties | STATE, v. MOUBRAY. |
| Docket Number | No. 10597,10597 |
| Decision Date | 23 March 1954 |
Page 117
v.
MOUBRAY.
Decided March 23, 1954.
Page 118
Syllabus by the Court.
1. The general rule is that the State, in a criminal case, may not introduce evidence of a substantive offense committed by the defendant which is separate and distinct from the specific offense charged in the indictment.
2. Upon the trial of an indictment for incest evidence of the commission by the defendant of other separate and distinct offenses of the same type or nature as the specific offense with which he is charged is inadmissible.
3. 'An instruction calling the jury's attention to a particular, uncontrolling fact or circumstance, and thereby giving it undue prominence, is properly refused.' Point 4, Syllabus, Cain v. Kanawha Traction and Electric Company, 85 W.Va. 434 [102 S.E. 119].
4. An instruction which tends to mislead and confuse the jury should not be given.
5. 'The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resuled therefrom.' Point 3, Syllabus, State v. Boggs, 103 W.Va. 641 [138 S.E. 321].
[139 W.Va. 536] Salisbury, Hackney & Lopinsky, Samuel D. Lopinsky, Charleston, Dennis R. Knapp, Nitro, for plaintiff in error.
John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for defendant in error.
HAYMOND, Judge.
The defendant Clyde Moubray was indicted by a grand jury attending the Intermediate
Page 119
Court of Kanawha County at the September Term, 1952, for the crime of incest. The indictment charged that the defendant in the month of July, 1952, in Kanawha County, did unlawfully and feloniously have sexual intercourse with his daughter and stated her name. A demurrer and a motion to quash the indictment were overruled and upon the indictment and his plea of not guilty the defendant was tried and convicted of the offense charged in the indictment. Motions of the defendant to set aside the verdict and grant him a new trial and in arrest of judgment were overruled and by judgment rendered December 9, 1952, he was sentenced to be confined in the penitentiary of this State for an indeterminate term of not less than five years or more than ten years.A writ of error was refused by the Circuit Court of Kanawha County on April 3, 1953, and this writ of error was granted by this Court on June 15, 1953, upon the petition of the defendant.
The daughter of the defendant, who at the time of the trial was a few days less than fourteen years of age, testified as a witness in behalf of the prosecution that a short time after July 4, 1952, at the home of her parents, who [139 W.Va. 537] are the defendant and his wife, in East Nitro, Kanawha County, the defendant had sexual intercourse with her in a bedroom in the evening after supper when her mother was temporarily absent from the home. She also testified that more than a month before this occurrence the defendant, on two or three occasions, had sexual intercourse with her at his home in East Nitro, and that after the act committed by the defendant in July, which was the last act of sexual intercourse to which she testified, she told her mother, and her half sisters, Phyllis and Betty, stepdaughters of the defendant, and a police officer at Nitro, of the conduct of the defendant. She further testified that some time later she went to police headquarters in Nitro, accompanied by her mother and, at her instance, told a police officer there a different and contradictory version of the affair, and that she also told two women, who testified in behalf of the defendant, and the attorney for the defendant that the defendant had not had relations with her. After the matter was reported to the police authorities the defendant, who was forty six years of age and employed as an oiler by American Viscose Company, was arrested and charged with the offense.
Over the objection of the defendant the State introduced the testimony of Phyllis, who at the time was married and living with her husband at Nitro, that before she left the home of the defendant and before she was married, the defendant committed numerous acts of sexual intercourse with her from the time she was seven or eight years of age until she left his home to live with her grandmother when she was sixteen years of age. This witness also testified that the last of such acts was committed before she left home and that at the time of the trial she was twenty one years old and had been married about three years.
Another stepdaughter of the defendant, whose name is Betty, testified, over the objection of the defendant, that before she was thirteen years old and until about one year before she was married, the defendant had had sexual intercourse with her at different times in his home. [139 W.Va. 538] She also testified that she was nineteen years of age at the time of the trial, that she was married about three years previously when she was sixteen years of age, and that the last time the defendant had sexual intercourse with her was about one year before her marriage. The evidence of these two witnesses concerning the prior sexual acts of the defendant with them was offered by the State for the purpose of showing motive, system and intent upon the part of the defendant but not his guilt or innocence of the offense charged in the indictment, and the trial court so instructed the jury.
After the daughter of the defendant reported his conduct to the officers she was examined by a doctor who testified that his findings indicated that she had had
Page 120
sexual intercourse repeatedly during a period of several months. She testified that she had never had sexual intercourse with any person other than her father.At and prior to the trial the stepdaughters of the defendant were not friendly with him. He and their mother were married about seventeen years before the trial and he testified that he had had prior disagreements with each of his stepdaughters. The wife of the defendant testified as a witness in his behalf and at that time she was living in his home.
Several witnesses for the defendant stated that his reputation for morality in the community in which he lived was good. He testified in his own behalf and denied that he had ever had sexual intercourse with his daughter or with either stepdaughter. He also testified that he was surprised when informed of the offense for which he was arrested and did not know the nature of the charge against him until he was informed of it by the officer who arrested him.
On cross-examination the defendant was asked if he had been proviously convicted of the offense of 'drunken driving' by H. D. Meador, a justice of the peace in Saint Albans, upon a plea of guilty and paid a fine and costs, and if his automobile had been impounded in June, 1941. [139 W.Va. 539] He stated that he had then been convicted of the offense of 'not having an operator's license' but had not been convicted of 'drunken driving'. In this statement he was corroborated by the testimony of a witness who was present when the defendant paid the fine imposed by the justice of the peace. In rebuttal the State introduced the record of the justice who had died before the trial of this indictment. That record contained the notations that the charge against the defendant in June, 1941, was the operation of a motor vehicle upon a public highway while intoxicated and under the influence of intoxicating liquor; that the defendant on June 14, 1941, plead guilty to that charge and was fined twenty five dollars and costs; and that his operator's license was revoked for six months and his automobile was impounded for a like period of time.
The trial court gave three instructions offered by the State and eleven of the twelve instructions offered by the defendant but refused to give Instruction No. 11 requested by the defendant. This instruction contained this language: 'The Court instructs the jury that the record of H. A. Meador, Justice of the Peace, though it indicates the defendant plead guilty to driving while intoxicated is not a verity and may be impeached; you are instructed that you do not necessarily have to accept the record as true.'
In his argument to the jury the assistant prosecuting attorney, referring to the record of the justice of the peace, said: 'I will put his record up against the testimony of that man sitting on the witness stand. If any of you knew Squire Meador in his lifetime, he was a justice of the peace and I knew him a long time--you men who knew him knew that he conducted his office in a fair and impartial manner and his docket showed what happened. That question was asked to test the credibility of that witness, the defendant, but what he said is not true, as testified to by this record. As to his learner's permit, he was driving without a license. Under the law at that time they could only impound the car if he was driving drunk. He told you from that witness stand that his automobile was impounded. What was the offense he was charged [139 W.Va. 540] with...
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