State v. Wilson.
| Decision Date | 22 September 1914 |
| Docket Number | No. 2625.,2625. |
| Citation | 74 W.Va. 772 |
| Court | West Virginia Supreme Court |
| Parties | State v. Wilson. |
Testimony of physicians as experts, concerning the usual and ordinary effect of the severe nervous shock incident to a rape committed upon a woman, the manifestations thereof and their duration, as bearing upon her credibility as a witness and the truth of her accusation, is admissible; but, as it is not in character exclusively expert, the rejection thereof is harmless error. (By four judges.) (p.776).
A witness on a trial upon an indictment for rape who has testified to the existence of certain physical injuries to the prosecutrix, without any expression of opinion as to what might have caused them, cannot be cross-examined as to any opinion he may have, concerning the cause thereof, (p. 778).
In the trial of such a case, it is not erroneous to give an instruction which, in detailing subjects of jury inquiry, includes "the presence or absence of scratches or other marks of violence upon the face or person of the defendant" and directs them to consider whether or not the clothing of the prosecutrix was torn, even though there is no evidence of marks of violence on the defendant nor any evidence of any torn clothing. (By four judges; Poffenbarger, J., dissenting.) (p. 778).
An instruction which, after telling the jury they may convict upon the uncorroborated testimony of the prosecuting witness, if, from it, they believe the prisoner guilty, further says they may find him guilty if they believe him to be so " from the testimony of the prosecutrix and corroborating circumstances and facts testified to by other witnesses," is harmless when read with other instructions on the same subject, and does not call for reversal. (By four judges; Poffenbarger, J., dissenting.) (p. 779).
An instruction in such a case, directing the jury to consider, among other things, the time intervening between the alleged outrage and the complaint by the prosecutrix, need not specify such time, (p. 780).
In a case in which the evidence is largely direct, positive and oral, prayers for instructions telling the jury they must acquit the prisoner, if there is any reasonable hypothesis consistent with his innocence, are properly denied, the rule being applicable onjy to issues dependent upon circumstantial evidence, (p. 780).
An instruction invoking the maxim, Falsus in uuum falsus in omnibus, must state both alternatives as to so much of the evidence of the witness as is not known to be false, by telling the jury they may disregard it or give it such effect as they think it is entitled to. (p.781).
Mere possibilities and probabilities inconsistent with the verdict and arising out of the evidence, but opposed by direct and positive evidence, do not warrant disturbance of the verdict by an appellate court, (p. 781).
(Pqffenbarger, Judge, dissenting in part.)
Error to Circuit Court, Jefferson County.
E. Graham Wilson was convicted of rape, and brings error.
Affirmed.
Campbell & Sheets, Martin & Seibert, John L. Lee and Marshall McCormick, for plaintiff in error.
A. A. Lilly, Attorney General, John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.
POFFENBARGER, JlJDGE:
Convicted of the crime of rape and sentenced to imprisonment in the penitentiary for a period of fourteen years, Wilson complains of the judgment, assigning error in numerous rulings of the trial court.
According to the testimony of both the prisoner and the prosecution, the former had carnal knowledge of the latter in such manner and to such extent as to constitute the crime of rape, provided it was not done with the consent of the prosecutrix. Whether there was such consent within the meaning of the law, was the vital question in the case. There were no eye witnesses to the transaction between the parties, save the actors themselves, and what transpired depends largely upon their oral testimony. The State relied upon certain physical injuries found upon the person of the prosecutrix, shortly after the transaction, as circumstances and facts tending to corroborate her testimony. There were bruises on her arm, one leg and the back and rupture and inflammation of the private parts. The prisoner resisted this effort to corroborate, by testimony tending to show the nonexistence of all the bruises, except one, at the time of an examination made by a physician, soon after the complaint was made and the possibiltiy of laceration and inflammation as the result of voluntary action. This contradictory testimony adduced on behalf of the prisoner was supplemented be evidence tending to show divulgence of the secret by the prosecutrix herself, through fear of exposure by pregnancy. In other words, the theory of the defence is that she voluntarily submitted and afterwards, becoming frightened, disclosed her condition to certain members of her family and intimate friends, and, having done this, became impressed with the necessity of making the false charge against the prisoner in exoneration of herself. She admits having taken precaution against pregnancy by the use of a purgative and syringe and also of having taken the advice of her physician, who assured her, that, on account of her age and condition, there was absolutely no danger. Her conduct immediately after the transaction is relied upon as being inconsistent with the accusation made. At the time thereof, she was the guest in the house of the accused and went with him in a buggy to a secluded spot, and, after the occurrence complained of, drove back with him to his home, and remained there until sometime in the afternoon and then drove with his wife to Charles Town, the place of her residence, and, after reaching that place, did not immediately go home, but drove around to one or more houses with Mrs. Wilson and then a mile into the country and back, all without having made any complaint or indicated in any way the happening of anything unusual. The only instance of the detection of anything in her appearance or conduct indicative of the occurrence of anything unusual is found in her testimony, qualified by that of Mrs. Wilson and the accused. She says something in her appearance on her return to the Wilson home caused Mrs. AVilson to ask her what was the matter and if she had had an accident, to which question she had replied "No," at the same time sinking into a chair. Mrs. Wilson says the prosecutrix, on entering the house, called "Hello" in a bright cheerful voice, but evaded her question when asked if she had had a pleasant drive, by saying it was a fine morning for a drive, and thereupon, prompted by the evasion or her knowledge that the horse was young, she asked whether they had had an accident or if the horse had scared, but she does not remember what reply was made, She says, however, she did observe that Miss Turner's face was flushed and her large straw hat was a little to one side. Wilson admits his wife asked him if the horse had scared and says he told her it had and that Miss Turner was frightened "just a little." There were no torn clothes nor any scratches on the face of either of the parties.
The rejection of expert testimony of two medical witnesses, offered for the purpose of proving the physical effect of a nervous shock generally incident to such an experience as the prosecutrix claims to have undergone, and the outward manifestation thereof and the period of time during which such manifestations wonld likely continue, is a subject of serious and earnest complaint. To sustain this ruling, the learned judge who tried the case relied upon People v. Royal, 53 Cal. 62, but the case is not in point. The court disapproved opinion evidence of force in that case, because it was founded upon actual, positive evidence of solicitation and nothing more. The ruling is equivalent to an adjudication that a witness will not be permitted to say white is black, or that certain conduct having a recognized character in fact and law may be regarded as something different. Cook v. State, 24 N. J. L. 843 involved a question nearer in character to the one here presented. The question there rejected as improper was, whether a woman placed in the situation described by the prosecutrix would be more likely to swoon or to be nerved to unusual strength. The court rejected it upon the following considerations: It will be observed that this question was intended to elicit an opinion as to what a person would likely do under certain circumstances, in contradiction of what the witness said she had done. In this case, the evidence was offered to prove a usual and ordinary effect of a severe nervous shock, resulting from pain, fright and exertion, bearing upon the credibility of the prosecutrix and the truth or falseness of her statement. The test of the admissibility of opinion evidence, whether expert or non-expert, is the competency or incompetency of unskilled men constituting a jury, to form as accurate and reliable an opinion upon the subject matter of the testimony as persons having special knowledge of the subject, from their learning, professions, and experience, or their possession...
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