State v. W. W. Driver.

Decision Date26 April 1921
Docket NumberNo. 4162.,4162.
Citation88 W.Va. 479
CourtWest Virginia Supreme Court
PartiesState v. W. W. Driver.
1. Criminal Law-Discretion in Allowing 12-year-old Complaining Witness, With Unusual Intelligence, to Testify, Not Disturbed.

The question of the competency of a girl twelve years old, as a witness in a criminal case, is addressed to the sound discretion of the judge, and it is his duty to make a careful and full examination of her as to age, intelligence, capacity and legal and moral accountability; and where the record discloses that such was done both by the judge and by extended cross-examination by counsel, disclosing in her unusual intelligence, memory and legal accountability, the discretion of the court in permitting her to testify, will not be disturbed. (p. 489).

2. Witnesses-Refusal to Appoint Medical Commission to Ex-

amine 12-year-old Complaining Witness As to Competency or Credibility Held Proper.

In such case the judge, upon being satisfied as to her competency by inspection and full examination conducted by himself and counsel in his presence, may properly refuse to appoint a commission of medical experts to examine her and to report to him their opinion of her competency or credibility. (p. 489).

3. Criminal Law-Witnesses-Usual Method of Impeaching

Credibility of Witness is to Show Bad General Reputation for Truth and Veracity in Community of residence; Medical Testimony that Witness is a Moron Prone to Tell Lies Held Improper in Impeachment Where Opinion Based On Observation in Courtroom Alone.

The usual method of impeaching the credibility of a witness as one who will not tell the truth and is unworthy of belief, is to show the bad general reputation of the witness for truth and veracity in the community where she lives by impeaching witnesses who know that reputation. It is not proper to permit medical experts, who have heard only a portion of the evidence given, to testify from what they have heard and seen in the court room, and from observation of the witness on the stand, that she is, what is termed in the medical profession, a moron, and belongs to a kind or class of morons who are prone to tell lies, and that therefore she is unworthy of belief, and no weight should be given to her testimony. (p. 488).

4. Indictment and Information-Indictment Will Not be Quash-

ed Because Grand Juror Finding it Was An Officer.

An indictment will not be quashed or abated because one of the grand jury, which found it, was an officer. (Sec. 12, chap. 157, Code.) (p. 482).

5. Criminal Law-Time for Introducing Admissible Evidence

Held Within Discretion of Trial Judge.

The time at which admissible evidence can be introduced In a trial is necessarily governed by the trial judge and is within his discretion, and unless that discretion has been abused, and it is plain that prejudice thereby has resulted to a litigant, an appellate court will not reverse, (p. 496).

6. Same-Allowing Jury in Felony Case to Visit Moving Picture

Theater Under Care of Officer Held Not Reversible Error.

Where the jury, in a felony case, during the recess of the trial, attended by a proper officer, visits a moving picture theater, and it is shown by uncontradicted evidence of the officer and members of the jury that no separation of the jury was had; that they occupied seats together and in view of the officer and each other; and that no person approached or spoke to any of them, no prejudice to the defendant can be presumed, and it is not reversible error. (p. 497).

7. Same-Improper Evidence Not Considered in Absence of Ob-

jection or Exception.

Assignment of error in the appellate court, predicated on the introduction of improper evidence to the jury, given by a competent witness, will not be considered, when the record discloses that the party complaining neither objected nor excepted to the introduction of the evidence. (p. 500).

8. Same-Evidence of Former Attempts by Defendant On Same

Female Admissible in Prosecution for Attempt to Commit Rape.

In a prosecution for an attempt to commit rape on a female under the age of consent, evidence of former attempts by the defendant upon the same female is admissible to show the lustful disposition of the defendant toward her, and the existence and continuance of illicit relations between them, (p. 500).

9. Same:-Instructions Must be Considered as a Whole; Refusal

of Requested Instructions as to Matters Covered by Instructions Given Held Not Error.

Instructions must be considered together as a whole, and if one instruction has been given, fully covering a principle of law applicable to the case, it is not error to refuse other instructions to the same effect, although differently expressed. (p. 501).

Error to Circuit Court, Cabell County. W. W. Driver was convicted of an attempt to commit rape. A new trial was refused, and he brings error.


Warth, McCullough & Peyton and J. W. Perry, for plaintiff in error.

E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State. Lively, Judge:

W. W. Driver was convicted of an attempt to commit rape and sentenced to confinement for one year in the penitentiary by the Common Pleas Court of Cabell County on June 22, 1920. The court refused to award a new trial, and defendant brings the case here for review on writ of error.

A plea in abatement to the indictment was tendered and refused, and exceptions taken. The plea averred that Jas. H. Marcum, one of the jurors who found the indictment, was, at the time he sat on the grand jury, holding the office of President of the Berkeley Springs Board, and disqualified to act as a grand juror by reason of sec. 2, chap. 22, Acts 1919, which in part says that the persons listed by the jury commissioners and whose names are placed in the ballot box to be drawn as grand jurors "shall not be office holders under the laws of the United States or of this State." Sec. 12, chap. 157 of the Code provides: "No presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand jurors who found the same." Does the Act of 1919 repeal see. 12, chap. 157? Section 2 of chap. 22, Acts 1919 amended and re-enacted sec. 2 of chap. 157, Code, and places the duty of selecting and drawing the grand jury upon jury commissioners, a duty formerly resting upon the county court. Under the old law constables, keepers of hotels or taverns, surveyors of roads and owners or occupiers of steam or water grist mills were ineligible to be selected. The ban against these persons has been removed by the new law, except a constable, who is an officer under the laws of this State. The grand jurors selected under the old law were required to be freeholders, but under the new law that qualification is removed, so that the men listed now for such service shall be of good moral character, who have never been convicted of a felony or any scandalous offense, who shall be bona fide citizens of the State and county for at least one year immedi- ately preceding the preparation of the lists, and shall not be office holders under the laws of the United States or of this State. In State v. Henderson, 29 W. Va. 147, the same question arose as is presented here. A grand juror was not a freeholder and the prisoner moved to quash the indictment for that reason insisting that sec. 12 above quoted would be inapplicable, as it would be in conflict with the qualification section-the same objection presented here-Judge Johnson said: "Section 2, which provides that the list, from which the grand jurors shall be drawn, shall contain only freeholders, is clearly modified by sec. 12, which says, in effect, that, if one drawn on the grand jury is not a freeholder, that fact shall not vitiate an indictment found by him. This is a wise provision, because it would be very detrimental to the public interests, if perhaps a hundred indictments should be liable to be quashed or abated, because one, who was not a freeholder, happened to be placed on the list and was drawn as a grand juror." The two sections must be read in pari materia and effect given to each. Whether or not a prisoner who has been held to answer an indictment could successfully prevent an officer from being selected as a grand juryman is not necessary to be determined here. It does not arise. But it is clear that after indictment has been found the disqualification or incompetency of one or more of the grand jurors is cured. We can see no good reason for overruling the third point of the syllabus in State v. Henderson, supra. It is based on reason and good public policy. See also State v. Martin, 38 W. Va. 568.

A demurrer to the indictment was overruled, but this assignment of error is not urged, and is practically abandoned. We perceive no defect in the indictment.

Agatha Bragg, a girl twelve years old, upon whom the attempted rape was alleged to have been committed, was offered as a witness, and objection was made to her competency to give evidence. The court thereupon went into a lengthy examination of her competency upon her voire dire, and being satisfied of her competency directed the trial to proceed, when the defendant offered to show by Dr. L. V. Guthrie and others that Agatha Bragg was a moral pervert, and not trustworthy. The court refused to hear the proffered evidence and the de- fendant excepted. The jury then returned to the court room and the trial proceeded. When the State rested, Dr. L. V. Guthrie was examined as a witness by the defendant and after having qualified as an expert by showing his long familiarity and practice as a physician with nervous diseases generally, and with lunatics and imbeciles, he was asked if he was familiar with the class of people known as morons. He answered in the affirmative and proceeded to explain what is meant by the term moron, and defined a moron to be a high-grade mental defective, or a high grade feeble-minded. "It...

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