State v. Sherman Kincaid

• Decision Date: 25 October 1927
• Docket Number: (No. 5897)
• Citation: 104 W.Va. 396
• Parties: State v. Sherman Kincaid
• Court: West Virginia Supreme Court

104 W.Va. 396

State

v.Sherman Kincaid

(No. 5897)

Supreme Court of Appeals of West Virginia.

Submitted October 18, 1927.

Decided October 25, 1927.

1. Rape Indictment for Rave of Female, Under Age of Sixteen Years, Drawn Under Sec. 15, Chapter 144, Code, Not Demurrable on Ground That it Failed to Allege Assault Feloniously Made, Where it Did Allege Assault Unlawful, and Made With Intent Said Prosecutrix Then and There to Ravish and Carnally Know, Said Defendant Did Then and There, in Manner Aforesaid, Unlawfully and Feloniously Ravish and Carnally Know Prosecutrix.

An indictment for the rape of a female, under the age of sixteen years, drawn under Sec. 15, Chapter 144, Code, is not demurrable on the ground that it failed to allege that the assault was feloniously made, where it did allege that the assault was unlawful, and made with intent the said prosecutrix then and there to ravish and carnally know, and that the said defendant did then and there, and in the manner aforesaid, unlawfully and feloniously ravish and carnally know the prosecutrix. (p. 398).

2. Criminal Law Admission of Evidence In Such Case, Where Wife of Prisoner, Who Had Been Called as Witness on Husband's Behalf and Asked on Re-direct Examination Regarding Ages of Their Three Children, Thereby Establishing Prisoner's Age Over Sixteen Years, Was Recalled by State Examined Further as to Defendant's Age, Testimony so Elicited by State Later Stricken From Record and Jury Told to Disregard it, Held, Not to Constitute Error.

In such case, where the wife of the prisoner, who had been called as a witness on her husband's behalf and asked on re-direct examination regarding the ages of their three children, thereby establishing the prisoner's age to be over sixteen years, was recalled by the State and examined further as to the defendant's age, and the testimony so elicited by the State was later stricken from the record and the jury told to disregard it, Held not to constitute error. (p. 399.)

3. Criminal Law Comment on Failure to Testify A Case Wherein Statement Made by Prosecuting Attorney in Argument Before Jury to the Effect "That State Had Proven Defendant Had Had Sexual Intercourse and Carnal Knowledge of Prosecuting Witness, at Page, Thurmond, Charleston and Huntington, and Said Evidence Had Not Been, Denied", But Without Allusion to Defendant's Failure to Testify, Does Not Come Within Inhibition of Sec. 19, Chapter 152, Code.

A case wherein a statement made by the prosecuting attorney in his argument before the jury to the effect "that the State had proven that the defendant had had sexual intercourse and carnal knowledge of the prosecuting witness, at Page, Thurmond, Charleston and Huntington, and that said evidence had not been denied", but without allusion to defendant's failure to testify, does not come within the inhibition of Sec. 19, Chapter 152, Code. (p. 398.)

4. Instructions Instructions Must be Read as Whole, and if When so Read, it is Apparent They Could Not Have Misled Jury, Verdict Will Not be Disturbed, Though One of Said Instructions May Have Been Susceptible of Doubtful Construction While Standing Alone.

Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, though one of said instructions may have been susceptible of a doubtful construction while standing alone. (p. 402.)

Error to Circuit Court, Fayette County.

State against Sherman Kincaid. Verdict for plaintiff, defendant brings error.

Affirmed.

Howard B. Lee, Attorney General, and J. L. Wolfe, Assistant Attorney General, for the State.

C. W. Osenton and John T. Simms, for plaintiff in error.

Woods, Judge:

Sherman Kincaid, a married man about forty years old, was tried and convicted in the circuit court of Fayette County on the charge of statutory rape of one Gladys Lucas, alleged at the time to be under the age of sixteen years. The jury having recommended mercy, the defendant was sentenced to seven years in the penitentiary.

There is no question but that there is ample evidence to support the verdict and that the same should stand, providing the errors assigned have not prejudiced the defendant or infringed upon his constitutional guaranties. State v. Barker, 92 W. Va. 583. The prosecuting witness delineated a number of specific instances of illicit intercourse with defendant the first in June or July, 1925, and the last in May 1926. Other witnesses for the State testified to circumstances tending to show an intimate relationship between the prosecuting witness and the defendant, as well as the fact that the prosecuting witness was retained as a domestic in defendant's household at intervals from May 1924 to 1926. The wife of the accused was placed on the stand and testified concerning the age of the prosecuting witness.

The indictment is alleged to be defective in this, that it does not charge that the assault was feloniously made. However, it does charge that the defendant, a male person over the age of sixteen years, in and upon one Gladys Lucas, a female not his wife, under the age of sixteen years, did unlawfully make an assault, with intent her, the said Gladys Lucas, then and there to ravish and carnally know, and that the said defendant did then and there, etc., and in the manner aforesaid, unlawfully and feloniously ravish and carnally know the said Gladys Lucas. Thus it will be seen that the substantive offense of rape, on which the defendant was convicted, was properly laid and charged as having been feloniously committed.

The defendant contends that he has been denied the benefit of due process of law, by reason of the court's action in (1) permitting the State to call his wife as a witness against him, without his consent, and over his objection; and (2) refusing to instruct the jury to disregard a statement made by the prosecuting attorney in his argument before the jury to the effect "that the State had proven that the defendant had had sexual intercourse and carnal knowledge of the prosecuting witness, Gladys Lucas, at Page, Thurmond, Charleston and Huntington, and that said evidence had not been denied."

The rigor of the common law rules of evidence inhibiting the testimony of the accused in his own behalf, and the testimony of the wife for the husband, has been taken away by our statute. Sec. 19, Chapter 152, Code. After providing that the accused shall, at his own request (but not otherwise), be a competent witness on the trial, the statute authorizes the wife or husband to testify upon request of the accused, and provides that nothing in the section shall be construed as being compulsory upon either husband or wife, and that a failure to make such request by either party shall not create any presumption against him or her. This same section ends with the prohibition: "Nor shall any reference be made to nor comment upon such failure by any one during the progress of the trial in the hearing of the jury." In the present case, the husband had his wife called to the stand for the purpose of contradicting the prosecutrix and her mother regarding the prosecutrix's age. After cross-examination by the State, the defendant's counsel questioned her on re-direct examination, as follows: "Q. How old are your children, Mrs. Kincaid? A. ...