State v. Beacraft , 126 W. Va. 895 ( 1944 )

I respectfully dissent from the views expressed in the majority opinion in two particulars: (1) The evidence, in my opinion, is insufficient for a jury to find beyond a reasonable doubt that defendant had sexual intercourse with prosecutrix on the date and at the place upon which the State elected to rely: in the cellar under defendant's smokehouse a short time after Christmas, 1941; and (2) the evidence tending to prove that defendant had immoral relations with prosecutrix at times subsequent to the purported act upon which the State elected to rely is inadmissible.

Prosecutrix testified in chief that "He [defendant] told my mother to clean up the house and wash the dishes and he told my brother to hull some beans while we went to the cellar to separate potatoes. We went down to separate the potatoes. He [defendant] had intercourse there", and in response to the question "He took you down in the cellar?", she responded, "Yes, sir." As stated in the majority opinion, "Anna Beacraft, Harvey Rockwell and the defendant testified that the smokehouse over the cellar in which prosecutrix testified the crime had been committed had been removed some time before the date of the alleged crime, and the cellar filled with stone." Anna Beacraft testified that at the time of the alleged crime no potatoes were kept upon the home premises and that the Beacrafts stored their potatoes in a neighbor's cellar some distance away. On rebuttal prosecutrix attempted to explain her testimony in chief. Her attempted explanation, in my opinion, is in fact contradictory to her testimony in chief. She testified that the old smokehouse had been torn down when the Beacrafts moved on the farm, leaving an excavation about five feet deep, which at the time of the alleged act was covered with canvas. The testimony of the State's witness Bell given on rebuttal was, as he testified, based in part on what other people told him. He stated that he had not closely observed the situation. In the main his testimony lacks definiteness and certainty, and merits little weight. Moreover, prosecutrix is clearly contradicted by her own affidavit. This affidavit was obtained by a lawyer of reputable standing at the bar of this Court, and the record discloses that prosecutrix in executing it was free from any coercion by the attorney or the notary. Dr. DuPuy's testimony is simply to the effect that a physical examination of prosecutrix disclosed that she had had sexual intercourse frequently over a period of time, but that testimony does not establish that the acts of intercourse were had with defendant. In my opinion, the evidence in this case bearing on the question whether defendant was guilty of rape upon prosecutrix in the cellar of the smokehouse of the Beacraft property shortly before Christmas, 1941, considered with the conflict in plaintiff's testimony in chief and her affidavit and testimony on rebuttal does not sustain the State's position. I think the State's evidence lacks plausibility and credence to such an extent as to bring this case within the decisions of this Court in Acree v. Pipe LineCo., 122 W. Va. 242, 8 S.E.2d 186, and Owen v. Power Co., 78 W. Va. 596,89 S.E. 262. In the Acree case this Court held: " 'Courts are not required to believe that which is contrary to the human experience and the laws of nature, or which they judicially know to be incredible * * *.' "

The evidence introduced by the State tending to prove that defendant had immoral relations with prosecutrix on dates subsequent to the time of the alleged crime, in my opinion, is inadmissible. It is true, as stated in the majority opinion, that in this State evidence of acts prior to that upon which conviction for rape is sought, is admissible to show that defendant entertained an improper or lustful disposition toward prosecutrix, and to corroborate the evidence bearing on the particular act relied upon. State v. Driver, 88 W. Va. 479,500, 107 S.E. 189; State v. Lohm, 97 W. Va. 652, 660, 661,125 S.E. 758. But evidence of subsequent acts does not tend to establish that defendant entertained an improper disposition toward defendant before or at the time of the alleged act. Proof of subsequent acts is nothing more than giving evidence of an offense distinct from that relied on by the State. There is but one issue before the jury: Is the defendant guilty of the offense at the time and place relied on by the State? Evidence of subsequent acts would have the effect of confusing the issue. On this question, as stated in the majority opinion, there is a conflict of authority. 44 Am. Jur., Rape, Section 81. The trial court, I think, committed reversible error in allowing the introduction of evidence relative to acts of sexual intercourse subsequent to the time of the alleged act on which the State relies for a conviction.

For the two foregoing reasons I would reverse the judgment of the trial court.

Judge Riley concurs in this dissent as to the first ground only.