State v. Wright

• Decision Date: 24 June 1947
• Docket Number: 9907.
• Parties: STATE v. WRIGHT.
• Court: West Virginia Supreme Court

43 S.E.2d 295

130 W.Va. 336

STATE v. WRIGHT.

No. 9907.

Supreme Court of Appeals of West Virginia.

June 24, 1947

Syllabus by the Court

1. Where a defendant in a criminal trial for incest upon his daughter, who was under the age of consent at the time the alleged crime was committed, was prior to his indictment arrested under a warrant for statutory rape upon his infant daughter, the introduction of the warrant upon the trial for incest is not prejudicial error, for the reason that the warrant is based upon the same facts upon which defendant was later indicted and tried.

2. In a trial for incest upon defendant's infant daughter it is not reversible error for the trial court on cross-examination to permit the State to elicit from defendant the fact that his children were taken from him by the public assistance department authorities, where the testimony was introduced for the purpose of rebutting defendant's testimony to the effect that he was solicitous as to prosecutrix' conduct.

3. In a criminal trial it is not prejudicial error for the State to give an instruction which told the jury that they might take into consideration the flight of defendant from the arresting officers after the commission of the alleged crime.

4. In a criminal trial it is proper for a trial court to instruct the jury that defendant's failure to produce evidence in addition to that in the record may be considered by the jury in connection with other facts in the case, where the instruction specifically told the jury that it must not assume or presume the guilt of defendant by reason of his failure or neglect to produce such other evidence. This instruction does not violate the rule in criminal cases that the burden of proving defendant's guilt beyond a reasonable doubt, rests upon the State throughout the entire trial and never shifts to defendant.

5. The case of State v. Golden, 90 W.Va. 496, 111 S.E 320, distinguished.

Ajax T. Smith and Burton, Sanders & Shaffer all of Princeton, for plaintiff in error.

Ira J. Partlow, Atty. Gen. and J. Chandler Curd, Asst. Atty. Gen., for defendant in error.

RILEY Judge.

The defendant, V. L. Wright, was indicted, convicted and sentenced to confinement in the penitentiary for a term of not less than five nor more than ten years, in the Criminal Court of Raleigh County, for the crime of incest upon his daughter, Iris Wright, fifteen years of age. Application to the Circuit Court of Raleigh County for a writ of error and supersedeas was refused with the notation that the judgment of the criminal court was plainly right. To the judgment of the circuit court this writ of error is prosecuted.

Iris Wright testified that she was fifteen years old on Oct. 2, 1945. According to her testimony, defendant had sexual intercourse with her for the first time at Elverton in Fayette County in the year 1943, when she was about thirteen years of age; that he continued to have intercourse with her in Fayette County, West Virginia, for several months, when she and defendant went to McDowell County, where intercourse continued; and that from McDowell County, they went to Mercer County, where sexual relations were continued, and finally they moved to Francis, a short distance from Rhodell (both in Raleigh County). The last act of sexual intercourse, upon which the State relies for conviction, was consummated during the latter part of July, 1945, in the two-room shack in Francis, then occupied by defendant and his daughter. It appears that special officer, Everett Shutt, was caused, through a letter from Susie Wright, sister-in-law of defendant, to make an investigation regarding defendant's relations with his daughter, and that as a result of such investigation said officer went before Cole, a justice of the peace in Rhodell, and, upon his own affidavit, secured a warrant based upon the charge of statutory rape, for the arrest of defendant. When Shutt, together with another officer, attempted to make the arrest, at the place where the alleged act of intercourse had taken place, defendant escaped, going to Mercer County where his father lived. He was arrested a day or two later and returned to Raleigh County. Both the warrant and the latter referred to above were introduced in evidence.

Various witnesses testified on behalf of the State as to suspicious circumstances tending to show that defendant engaged in illicit relations with his daughter. The prosecutrix testified that defendant was wont on some occasions to fondle her, and in this she is also corroborated.

Susie Wright, heretofore mentioned, the wife of one Claude Wright, defendant's brother, stated that in their home in Mercer County prosecutrix and defendant slept in the same room which contained only one bed, though places had been prepared for them to sleep in separate quarters. However, her husband, Claude Wright, contradicted this testimony.

Defendant denied all improper relations with his daughter Iris, and testified that the accusation grew out of his efforts to discipline her and to stop her from keeping late hours and undesirable company. Leo Wright, defendant's eighteen-year-old son, testified that he lived with his father and sister Iris during much of the time during which Iris claims she was having illicit relations with her father, and that he had observed no improper conduct on the part of defendant toward prosecutrix. This witness and defendant's sister, Maude Rierson, both testified to the effect that they had spent the night on which the last act of sexual intercourse is alleged to have taken place, in the two-room shack at Francis and that on that night Leo Wright and his father slept together, and Maude Rierson and prosecutrix slept together, and further, that no act of intercourse occurred between defendant and his daughter at that time.

A number of witnesses testified that prosecutrix had a bad reputation for veracity; that she engaged in profane language toward her father; and that she made threats against him and assaults upon him. Several witnesses testified that she was wont to keep late hours and undesirable company, and one witness testified, over objection, that after defendant was arrested prosecutrix ceased to do so.

Mrs Wood, of Kay Moor, who ran a boarding house at which defendant and his daughter stayed for about a month in 1944, occupying the same room which had two beds, was permitted on rebuttal, over objection, to state why she ordered defendant to leave her house. She testified that one of the beds would be wet and that 'the doors were locked. I couldn't see what bed was occupied by her or which was his * * * I would not have any beds like that, I was suspicious,...