State v. Swiger, (No. 6121.)

CourtSupreme Court of West Virginia
Writing for the CourtLITZ
Citation143 S.E. 85
PartiesSTATE . v. SWIGER.
Decision Date20 March 1928
Docket Number(No. 6121.)

143 S.E. 85

STATE .
v.
SWIGER.

(No. 6121.)

Supreme Court of Appeals of West Virginia.

March 20, 1928.


[143 S.E. 85]

Rehearing Denied April 23, 1928.

(Syllabus by the Court.)
(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Randolph County.

Jesse E. Swiger was convicted of statutory rape, and he brings error. Affirmed.

Le Roy See and Stanley Bosworth, both of Elkins, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

LITZ, J. The defendant, Jesse Swiger, seeks the reversal of a judgment of the circuit court of Randolph county sentencing him to a term of 12 years in the penitentiary on a charge of statutory rape.

April 4, 1927, the defendant, a married man, induced Pearl Carder, a first-year high school girl (who is alleged to have been only 14 years of age, having been born October 5, 1912), to go with him from her home near Clarksburg to the city of Elkins, where they roomed together at the Tygart Hotel for two nights; then going to Charleston, remained there together at the Peyton Hotel for one night, and at a private home five nights, when, at the instance of her parents, they were discovered and arrested. On being returned home, it was found that she had contracted a venereal disease from the defendant as a result of sexual intercourse with him at Elkins and Charleston. After taking treatment for the disease at a clinic for some time, she left home and was arrested in an automobile with the defendant a few days before the trial, which took place May 27, 1927. Previous to her association with the defendant, she was chaste and obedient to her parents.

The grounds of error are: (1) The examination by the state of the prosecutrix, who was friendly to the defendant, regarding previous statements made by her inconsistent with her testimony in respect to her age; (2) the introduction of evidence tending to show that she was biased in favor of the defendant; (3) the admission of evidence showing that she had contracted a venereal disease as the result of sexual intercourse with him; (4) the admission. of testimony of the mother, concerning the age of the girl, as tending to impeach an alleged public record of her birth: (5) the statement of the trial court relative to a certificate from the clerk of the county court of Harrison county based upon said record and offered in evidence by the defendant; and (6) that the verdict is contrary to the law and the evidence.

The prosecutrix, first called by the state, after testifying in reply to a question on direct examination that she was 16 years of age, was asked if she had not previously stated that she was only 15 years old. This she admitted. It is contended that such leading or cross-examination of the witness violates the rule against the impeachment of one's own witness. In 28 R. C. L. 644,. it is said that the cases are practically in accord in holding that a party who is surprised by...

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9 practice notes
  • State v. Blankenship, No. 10404
    • United States
    • Supreme Court of West Virginia
    • March 4, 1952
    ...may interrogate such witness as to previous inconsistent statements made by him.' Point 2, Syllabus, State v. Swiger, 105 W.Va. 358 [143 S.E. 85]. 3. 'Code, 57-3-6, requires an accused who voluntarily becomes a witness in his Page 400 own behalf to state in response to questions propounded ......
  • Crum v. Ward, No. 12057
    • United States
    • Supreme Court of West Virginia
    • September 7, 1961
    ...State v. Wolfe, 109 W.Va. 590, 156 S.E. 56, 74 A.L.R. 1039; State v. Justice, 107 W.Va. 490, 148 S.E. 843; State v. Swiger, 105 W.Va. 358, 143 S.E. 85.' During the closing argument counsel for plaintiff was permitted to write on a blackboard, and place before the jury the following figures ......
  • Hartley v. Crede, No. 10651
    • United States
    • Supreme Court of West Virginia
    • October 1, 1954
    ...State v. Wolfe, 109 W.Va. 590, 156 S.E. 56, 74 A.L.R. 1039; State v. Justice, 107 W.Va. 490, 148 S.E. 843; State v. Swiger, 105 W.Va. 358, 143 S.E. 85. The prior written statement of the witness, offered by the defendants and excluded by the circuit court, was [140 W.Va. 153] inadmissible u......
  • Abdulla v. Pittsburgh & Weirton Bus Co., No. 13469
    • United States
    • Supreme Court of West Virginia
    • March 25, 1975
    ...v. Wolfe, 109 W.Va. 590, 156 S.E. 56 (1930); State v. Justice, 107 W.Va. 490, 148 S.E. 843 (1929), and State v. Swiger, 105 W.Va. 358, 143 S.E. 85 The testimony given by witness Vucjak concerning the distance he parked from the intersection was, we believe, sufficiently at odds with his pre......
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9 cases
  • State v. Blankenship, No. 10404
    • United States
    • Supreme Court of West Virginia
    • March 4, 1952
    ...may interrogate such witness as to previous inconsistent statements made by him.' Point 2, Syllabus, State v. Swiger, 105 W.Va. 358 [143 S.E. 85]. 3. 'Code, 57-3-6, requires an accused who voluntarily becomes a witness in his Page 400 own behalf to state in response to questions propounded ......
  • Crum v. Ward, No. 12057
    • United States
    • Supreme Court of West Virginia
    • September 7, 1961
    ...State v. Wolfe, 109 W.Va. 590, 156 S.E. 56, 74 A.L.R. 1039; State v. Justice, 107 W.Va. 490, 148 S.E. 843; State v. Swiger, 105 W.Va. 358, 143 S.E. 85.' During the closing argument counsel for plaintiff was permitted to write on a blackboard, and place before the jury the following figures ......
  • Hartley v. Crede, No. 10651
    • United States
    • Supreme Court of West Virginia
    • October 1, 1954
    ...State v. Wolfe, 109 W.Va. 590, 156 S.E. 56, 74 A.L.R. 1039; State v. Justice, 107 W.Va. 490, 148 S.E. 843; State v. Swiger, 105 W.Va. 358, 143 S.E. 85. The prior written statement of the witness, offered by the defendants and excluded by the circuit court, was [140 W.Va. 153] inadmissible u......
  • Abdulla v. Pittsburgh & Weirton Bus Co., No. 13469
    • United States
    • Supreme Court of West Virginia
    • March 25, 1975
    ...v. Wolfe, 109 W.Va. 590, 156 S.E. 56 (1930); State v. Justice, 107 W.Va. 490, 148 S.E. 843 (1929), and State v. Swiger, 105 W.Va. 358, 143 S.E. 85 The testimony given by witness Vucjak concerning the distance he parked from the intersection was, we believe, sufficiently at odds with his pre......
  • Request a trial to view additional results

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