State v. Rye Wobthington, (No. 6752)

• Decision Date: 07 October 1930
• Docket Number: (No. 6752)
• Citation: 109 W.Va. 449
• Court: West Virginia Supreme Court
• Parties: State v. Rye Wobthington

109 W.Va. 449

State

v.Rye Wobthington

(No. 6752)

Supreme Court of Appeals of West Virginia.

Submitted September 16, 1930.

Decided October 7, 1930.

1. An erroneous ruling of the trial court, causing no injury to the complaining party, is not ground for reversal.

Error to Circuit Court Wyoming County.

Rye Worthington was convicted of robbery, and brings error.

Affirmed.

Grover C. Worrell and John R. Pendleton, for plaintiff in error.

Howard B. Lee, Attorney General and R. A. Blessing, Assistant Attorney General, for the State.

Litz, Judge:

The defendant, Rye Worthington, was convicted and sentenced to twenty-five years in the penitentiary under an indictment charging him and one Tolliver jointly with the robbery of Henry Shumate in Wyoming County on the night of August 4, 1929. They elected to be tried separately; and (according to statement of counsel) Tolliver was acquitted. Shumate was the only witness for the State to the act of robbery. Two other witnesses, however, testified to having seen Worthington and Tolliver near the place of the alleged robbery a few minutes before.

The defendant relied upon an alibi, which he attempted to establish by quite an array of witnesses. The grounds of error complained of are: (1) The admission of improper evidence on behalf of the state; (2) the granting of an improper instruction at the instance of the prosecution; and (3) the overruling of defendant's motion to set aside the verdict because the prosecuting witness, as defendant learned after the trial, was a second or third cousin of one of the jurors.

The evidence complained of (disclosed by cross-examination of a witness for the defendant) is to the effect that another witness, later offered by the defendant, was, at the time of the alleged robbery expecting to be indicted on the follwing day for an offense in Fayette County. Counsel for defendant concede that cross-examination of a witness tending to reflect upon his general character is largely within the discretion of the trial court (as announced in State v. Walker, 92 W. Va. 499; State v. Porter, 98 W. Va. 390; and State v. Wolfe, 99 W. Va. 694), but contend that the rule does not permit such testimony by other witnesses. "A witness can be impeached only by direct attack upon his testimony or character; and it has been laid down that there are four modes of impeaching the credibility of a witness: (1) By cross-examination; (2) by proving previous contradictory statements or acts; (3) by producing a record of his conviction of some infamous crime; and (4) by adducing general evidence tending to show that he is unworthy of belief on his oath." 40 Cyc, p. 2563. 28 R. C. L., sections 210 and 211, after calling attention to the conflict of authority as to whether proof of character of a witness is limited to his reputation for truth and veracity or may be extended to his general moral character, states: "Whether the scope of the inquiry is confined to general reputation for veracity or extends to general moral character, the authorities are quite uniform in holding that the character of a witness cannot be impeached by proof of particular acts of immorality or wrongdoing." Judge Lively, speaking for the Court in State v. Driver, 88 W. Va. 488, said: "The three general classes of evidence by which a witness may be impeached are: 1. Character evidence tending to show that the witness lacks truthfulness; 2. That on former occasions he has failed to state material facts, or different or conflicting facts testified to by him on the present occasion; 3. Evidence showing that his present testimony is materially variant from acts done or statements made at other times. Opinion evidence which assails the witness' truth and veracity must be founded on the knowledge of the assailed witness' reputation for truth and veracity among his friends. This is a universal method among English speaking people. In some jurisdictions it extends to the witness" bad reputation for morality, but such is not the method in this State or in the states generally. 1 Greenleaf on Evidence (16th Ed.), sec. 4461." As similar evidence was later elicited by the prosecution upon cross-examination of the witness assailed, the defendant suffered no injury from the testimony complained of.

The...