Benjamin Beacraft was indicted and convicted in the Circuit Court of Berkeley County for the crime of statutory *Page 897 rape upon his stepdaughter, Rosa Butts, and sentenced to the penitentiary for an indeterminate sentence of five to twenty years. To the judgment of sentence, he prosecutes this writ of error.
The State filed a bill of particulars, which stated that defendant had sexual intercourse with prosecutrix for the first time shortly after Christmas, 1941, at Jones Springs, in Berkeley County, and thereafter about every one or two weeks until her examination by Dr. H. R. DuPuy, Health Officer of Berkeley County, some time in February, 1943, shortly before defendant's arrest, in the vicinity of the Beacraft home, on one occasion at the home of prosecutrix's aunt, and on another at a roadside stand near Hagerstown, Maryland. The trial court having required the State to elect upon which occasion reliance would be had for conviction, the State elected the alleged occasion in the smokehouse cellar shortly after Christmas, 1941.
To prove the actual commission of the alleged crime the State relies upon the uncorroborated testimony of prosecutrix, an infant between fourteen and fifteen years of age who, the record discloses, was an incorrigible girl. At the time the alleged crime is claimed to have been committed, she resided on a farm near Jones Springs in Berkeley County, with her mother, Anna Beacraft, her brother, and defendant. She testified that shortly before Christmas, 1941, defendant attempted intercourse with her, which she termed incomplete; that shortly after Christmas, 1941, defendant had intercourse with her in the cellar of his smokehouse, to which they had gone to separate potatoes; and that thereafter the act was repeated about once a week until shortly before defendant's arrest on March 16, 1943, on defendant's farm and on two occasions when witness accompanied defendant away from home. Prosecutrix further testified that she feared her stepfather; that he threatened her with bodily injury if she told of their alleged relations; that he worked her hard and on occasions had whipped her; and that defendant told her that if she disclosed the relations between *Page 898 them, she would go to the reform school and he to the electric chair. This testimony was categorically denied by defendant on both direct and cross-examination.
Lee White, a neighboring orchardist, for whom prosecutrix and defendant had worked, and George Keesecker, at whose home defendant and witness had been, testified for defendant that prosecutrix had told them that she never had immoral relations with plaintiff, but "with a man in Baltimore". Amanda Rockwell, a defense witness and neighbor at whose house prosecutrix stayed all night on one of the several occasions she had run away from home, testified that prosecutrix stated to her: "Damn him, [meaning defendant] I wish I had on him what Lucille [a girl whose father had been convicted of incest with her] has on her dady. I would send him so far he would never get back. I have not got that on him, so if I would tell that, I would tell a story on him".
Defendant introduced the affidavit of Rosa Butts, obtained by defendant's counsel, which, among other things, stated that her stepfather "never at any time, had sexual intercourse with me nor did he ever attempt to", but testified that this statement was untrue, and that she made the affidavit because she feared defendant.
Anna Beacraft, Rosa's mother, testified that there was a smokehouse with a cellar thereunder, when defendant bought the home farm a number of years before prosecutrix claims the act complained of took place; that three years before the trial, which was at the May term, 1943, defendant and witness, assisted by prosecutrix, her brother, and Harvey Rockwell tore down the smokehouse and filled the cellar thereunder with stone from the foundation of an old house which had been destroyed by fire a few years before; and that during the winter of 1941-42, the Beacrafts kept no potatoes in the cellar. Harvey Rockwell and defendant testified to the same effect. On rebuttal the State introduced as a witness one J. W. Bell, who testified that a year before the trial he saw an excavation forty yards from the then location of the smokehouse in which strawberries were stored under a *Page 899 temporary cover. His testimony in this regard is rather indefinite. Prosecutrix, evidently in explanation of her former testimony, stated on rebuttal that the old smokehouse had been torn down when the Beacrafts moved on the farm, and that there remained an excavation about five feet deep, which had a canvas cover over it. This excavation, witness stated, was filled up with dirt shortly after the strawberry season was over in 1942.
Dr. DuPuy, county health officer, basing an opinion upon his examination of prosecutrix some time in February, 1943, shortly before defendant's arrest, testified that the girl had had sexual intercourse fairly regularly a number of times over a period of months. The record contains no contradiction of this testimony.
Initially we are concerned with the question raised by the sixteenth and eighteenth assignments of error whether the record contains sufficient evidence from which the jury could find beyond a reasonable doubt that defendant had sexual intercourse with prosecutrix on the first occasion set forth in the bill of particulars, to-wit, "a short time after Christmas, 1941." As heretofore noted, the State sought to establish the actual commission of the crime by the uncorroborated testimony of the prosecutrix only. She testified that the act was committed in the cellar of defendant's smokehouse, where they went to sort potatoes. That she had engaged in sexual intercourse frequently over a period of months is clearly established by Dr. DuPuy's testimony. This testimony, of course, does not establish that defendant committed the crime. It does, however, furnish an important basis, taken in connection with prosecutrix's testimony, for the State's contention.
In the Virginias a conviction for rape may be had on the uncorroborated testimony of the female, and unless her testimony is inherently incredible, her credibility is a question for the jury. State v. Rice, 83 W. Va. 409,98 S.E. 432; State v. Golden, 90 W. Va. 496, 111 S.E. 320; Lee, The Criminal Trial in the Virginias, 2nd Ed., Section 1417. See generally A.L.R. annotation to Noonan v. State of *Page 900 Nebraska, 117 Neb. 520, 221 N.W. 434, 60 A.L.R. 1118, 1125-1130. The rule applies though the testimony is flatly contradicted by the defense (State v. Driver, 88 W. Va. 479,502, 107 S.E. 189) and conflicts with prosecutrix's purported statements to the witnesses White, Keesecker, Amanda Rockwell and those contained in her affidavit. People v. Slaughter,33 Cal.App. 365, 165 P. 44.
Anna Beacraft, Harvey Rockwell and the defendant testified that the smokehouse over the celler 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. Is then prosecutrix's testimony, in the light of this evidence, inherently incredible? On rebuttal prosecutrix explains her testimony in chief. She stated that the old smokehouse had been torn down when the Beacrafts moved on the farm, and that there remained an excavation about five feet deep with a canvas cover over it. We cannot say that the prosecutrix's testimony in chief, coupled with the explanation contained in her testimony on rebuttal and that of Dr. DuPuy, is inherently incredible. That being so, there is, in our opinion, sufficient evidence for the jury to find beyond a reasonable doubt, which it evidently did, that defendant committed the alleged crime, and therefore the trial court did not err as set forth in assignments of error Nos. 16 and 18. The testimony of the prosecutrix not being inherently incredible, the jury had the right to believe her, and we think it would be improper for this Court to substitute its opinion for that of the jury and the trial court. The advantages possessed by the jury and the trial court, in appraising the weight to be given to her testimony, are manifest.
Error is assigned to the refusal of the trial court to propound four of five interrogatories submitted by defendant's counsel. The four refused involve reasonable doubt, presumption of innocence, and degree of proof, which are proper subjects for instructions. The trial court ex mero motu made ample inquiry of the jury on its voir dire. Such inquiry in a criminal case is within the *Page 901 sound discretion of the trial court and not subject to review, except when the discretion is clearly abused. State v. Camp,110 W. Va. 444, 158 S.E. 664.
In the second assignment of error defendant complains that the prosecuting attorney made the following statement, claimed to be inflammatory, objectionable and prejudicial: "This defendant, of course, is a married man. He is forty-two years old. The evidence, we are confident, will be complete in every detail." Defendant objected and excepted to these remarks. Generally, in a prosecution for rape, it is a prejudicial error for the court to introduce evidence that defendant is a married man. State v. Dorton, 125 W. Va. 381, 24 S.E.2d 455. But any error in the prosecuting attorney's remarks has been waived by defendant. On direct examination he and his wife testified, in answer to questions propounded by defendant's counsel, that they were married to each other. Moreover, the principle enunciated in State v. Dorton, supra, is inapplicable where, as in the instant case, the relationship between the prosecuting witness and the accused is such that it would be difficult to develop the case without disclosing that prosecutrix's mother is defendant's wife.
Defendant assigned error to the introduction of evidence tending to prove immoral relations between prosecutrix and defendant subsequent to the purported act upon which the State elected to rely. In a prosecution for rape, evidence of acts prior to that upon which conviction is sought is admissible to show that defendant entertained an improper disposition toward prosecutrix, and to corroborate evidence as to the particular act relied upon. State v. Driver, supra, 500; State v. Lohm,97 W. Va. 652, 660, 661, 125 S.E. 758; II Wigmore on Evidence, 3rd Ed., Section 398; 44 Am. Jur., Rape, Section 80. Our attention has been directed to no West Virginia case, and we have found none, in which the admissibility of evidence of acts subsequent to the one sought to be proved as the basis for a conviction for rape has been considered. Outside this jurisdiction there is conflict of authority on the immediate *Page 902 question. 44 Am. Jur., Rape, Section 81. In our opinion, such evidence tending to show acts identical with the act relied upon for conviction is admissible. See generally cases cited under Notes 2 and 3 of said Section 81.
Under Assignments of Error Nos. 5, 7, and 14, defendant complains of the trial court's refusal to permit defendant's counsel to cross-examine prosecutrix relative to the purported conversation with George Keesecker, concerning improper relations, if any, with "a man in Baltimore" and his relations with defendant; the court's action in sustaining the State's objection to the following question addressed to the witness Anna Beacraft: "I want you to state to the jury what her conduct was as indicating whether she was contented from that time until the arrest of defendant on March 16"; and the court's refusal to permit counsel to cross-examine Katheryne Payne, welfare worker in Berkeley County, concerning statements purported to have been made to the prosecuting witness by Circuit Judge Rodgers at a juvenile hearing. In all of these instances, the answers were not vouched in the record. Consequently, the court's action did not constitute reversible error. State v. Clifford, 59 W. Va. 1, 52 S.E. 981; State v.Sixo, 77 W. Va. 243, 255, 87 S.E. 267.
Assignment of Error No. 6 deals with the trial court's action in sustaining the State's objection to the following question addressed to the witness Lee White: "I want you to tell what the relations were between the stepfather and this stepdaughter while they were employed by you, as indicating any fear on her part of the defendant?" In view of the witness' answer: "I don't know of any", vouched in the record, the court's ruling was not prejudicial.
The trial court's refusal to permit the jury to view the Beacraft farm, suggested as error in Assignment No. 8, was within the exercise of the discretion of the trial court, and did not constitute error. Code, 56-6-17; Simms v. Dillon,119 W. Va. 284, 297, 193 S.E. 331; Gunn v. Ohio River Railroad Co.,36 W. Va. 165, 14 S.E. 465.
Assignments of Error Nos. 9 and 10 deal with the trial *Page 903 court's action in refusing to let defendant testify as to prosecutrix's attitude toward him, during and after the juvenile court hearing. We need not say whether the answers refused admission into evidence are admissible or not, as prosecutrix's attitude toward defendant is amply shown in the record.
The trial court's refusal to give defendant's instructions Nos. 5, 6, and 10 is assigned as error (Assignments of Error Nos. 11, 12, and 13). These instructions are fully covered by other instructions. It is not error to refuse an instruction where the subject matter thereof is fully covered by other instructions. State v. Driver, supra; State v. Rice, supra; andTaylor v. City of Huntington, decided at this term of Court.
Under Assignment of Error No. 4 defendant complains that the prosecuting attorney asked prosecutrix leading questions and coached her, to defendant's prejudice, and that upon objection counsel for the State and defense engaged in a discourse and the court made statements in the presence of the jury which were prejudicial and erroneous. Examination of the record discloses that the prosecuting attorney volunteered the statement that the "first act of intercourse as this young girl understands it, not the completed act, happened at Katz's." Counsel for defendant objected "to the coaching of the witness", and the court stated that it thought that counsel overestimated "these questions of coaching and interpretation of words", and then related in substance some of the testimony of prosecutrix. Careful examination of the record in connection with this assignment of error leads to the conclusion that the assignment is without merit.
Defendant also complains of the trial court's action in overruling his objection to the following statement made by the prosecuting attorney in closing argument: "Let's stop this thing in this community, gentlemen". This remark, though not material to the issues involved, in our opinion was not prejudicial.
Under Assignment of Error No. 17, defendant asserts that the judgment of the trial court is erroneous in that it *Page 904 provides for an indeterminate sentence of five to twenty years. The jury having found defendant guilty of rape, with recommendation of mercy, the defendant should have been sentenced to a definite term of not less than five nor more than twenty years. Code, 61-2-15. This error merits reversal only for the purpose of having the judgment of sentence corrected. State v. Fisher, 126 W. Va. 117, pt. 5 syl.,27 S.E.2d 581.
The judgment of the circuit court is therefore reversed and the case remanded for entry of a proper judgment of sentence upon the verdict.
Reversed and remanded.