LEROY BRADLEY, JR. V. COMMONWEALTH OF VIRGINIA
Record No. 4348
Richmond
April 25, 1955
1126
Present, Hudgins, C. J., and Eggleston, Spratley, Buchanan, Smith and Whittle, JJ.
J. Hugo Madison and James A. Overton, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.
SMITH, J., delivered the opinion of the court.
This writ of error brings here for review a judgment entered on the verdict of a jury finding the defendant, Leroy Bradley, Jr., guilty of rape by force against Miss Martha Lou Drewery, and sentencing him to confinement in the penitentiary for life. The grounds relied on for a reversal of the judgment are, (1) the trial court erred in admitting certain testimony, and (2) the evidence does not support the verdict. The defendant‘s major contention that Miss Drewery‘s account of the alleged rape is inherently incredible requires that the evidence be stated in some detail.
The prosecutrix, a 34 year old white woman employed by Allen‘s Hardware on Washington street in Suffolk, testified that at about 2:25 p. m. on January 23, 1954 she called Smith‘s Grocery Store, located on the corner of Brook avenue and Wellons street, and inquired whether they hаd fruit cake mix. When informed by the cashier that they had it, the prosecutrix said she would be “right over to get some.” It was snowing at the time, the streets were icy and slippery; few people were on the streets, and business at the Hardware was “awfully dull” with only a few customers coming in all day. At about 2:30 p. m. Miss
As she proceeded south along the left side of Saratoga street by a ball park, an undisclosed distance from Allen‘s Hardware, the prosecutrix overtook a colored man whom she did not know and had never seen before, but who she later learned was the defendant. At that time there were no other pedеstrians nor any vehicles traveling along the street. She testified that when she undertook to pass, between the defendant and the ball park fence, where the snow was not deep, “he grabbed me by my right arm, and for a second or two I was speechless. When I came to my senses I asked him to turn me loose. I pulled against him, and he told me I was going with him. I told him I did not want to go. He said, ‘You are going whether you want to or not.‘” The defendant then dragged her a distance of 286 feet across the street and a vacant lot to a shed, where peanut hulls were stored. When asked what she meant by “dragged“, she said: “I was partly crawling and partly walking part of the time, and I dropped down on my knees and he would take me by the arm and snatch me up. Then I stumbled over something else and he would give me a snatch.”
While crossing the lot a car passed and Miss Drewery waved her hand and screamed for help, but the defendant put his hand over her mouth and grabbed her throat and told her to keep quiet if she wanted to live. She further testified that upon entering the shed he “dragged me around to the back of this pile of hulls, and he held me by one arm and he took the other arm, and dug a cave in the peanut hulls. When he got the cave fixed he asked me to take my skirt off. I told him I wasn‘t. So he shoved me down on
After accomplishing his purpose the defendant led her from the shed to a house at 421 Wellons street, a distance of approximately 650 feet, in which there were several colored men and one colored woman. Miss Drewery testified that she was scared and wanted to talk to the colored woman, so while standing by the stove she turned to the colored woman and said, “I hope you don‘t mind me coming in your house to get warm, because I am about to freeze,” but she did not reply. This colored woman testified that Miss Drewery had no opportunity to talk to her out of the presence of defendant. From this house the defеndant led Miss Drewery to a house located on the corner of Ashley and Wellons streets, about 550 feet from the first house, and where there were many colored people. After remaining in this house a few minutes the defendant took her about 350 feet to a third house located on the corner of Nevada and Wellons streets where there were also several colored people. While there a man called the defendant into another room out of her рresence for a few minutes. When asked why she did not attempt to escape or make some outcry at that time, she said: “Because I knew he had again taken me where he had friends, and I was afraid to say anything to his friends because I was afraid that they, too, might hurt me; that if I tried to break for the door, they would be all around me. I was surrounded. Two of the colored women were talking. One said to the other, ‘Isn‘t she white?’ The other said, ‘I think she is.’ So I spoke up
Upon being asked to leave this house the defendant and the prosecutrix returned to the house on the corner of Wellons and Ashley streets, where he put money in a “nickelodeon” and attempted to force her to dance with him. While there the prosecutrix asked a white man, Gaskin Ellis, if he had a car, and when he said no, she did not say any more because she did not know him or his business there. Miss Drewery then gave a colored woman a dollar to help her escape from the defendant and when this woman failed to assist her, she secured the aid of another colored woman who went with her to the door and pointed out the bus stop, to which she proceeded. The defendant followed her and undertook to take her back to the house but turned her loose when he saw the bus, which she boarded and returned to Allen‘s Hardware.
Mrs. Bradshaw testified that Miss Drewery returned to the Hardware at about 5:00 p. m.; that when she came in she was nervous and crying, fell on her shoulder and told her what had taken place. She further testified that Miss Drewery‘s coat was wet and muddy all over the back and that she saw peanut hulls in her hair and clothes and that her boots were wet inside. This witness also testified that Miss Drewery‘s reputation for honesty, truth and veracity was good.
Mrs. Bradshaw promptly called Investigator Churn, a police officer of Suffolk for thirty years, who came in a few minutes. He tеstified that upon his arrival he found Miss Drewery crying and highly excited; that her clothing was wet to her waist and she had peanut hulls in her hair and in her clothes; that she complained of having been raped by a colored man whom she described as to height, build and clothing. Thereafter she went with Inspector Churn over the course she and the defendant had traveled and pointed
Inspector Churn also testified that during his investigation he followed footsteps in the snow from Saratoga street to the shed, and observed impressions in the snow near the shed which indicated that someone had been down on their knees; that when he found the defendant he was wearing clothes similar to those Miss Drewery had described; that he had peanut hulls in his clothes, galoshes аnd shoes and that at no time during his conversations with the defendant did he claim he knew or had ever seen Miss Drewery.
Dr. Thomas Christie testified that he examined Miss Drewery at 7:30 p. m. on January 23, 1954 and found male sperm in her vagina; that she was disheveled and nervous, and had peanut dust from head to toe; that she complained of pain in her wrist and had a bruise mark about one inch long on her right arm; that she was wearing a pad and told him it was the last day of her menstruation.
In a signed statement taken by Inspector Churn on January 27, 1954, the defendant stated that the accusation of Miss Drewery made on January 23rd at Police Headquarters was not true; that he met her on the east side of the ball park on Saratoga street after 2:00 p. m. on January 23, 1954; that she was looking for a man named “Country” Ellis and he offered to help her find him; that while going along the path from Saratoga street to Wellons street she went to the hull house and stayed inside a few minutes; that she came back to the door and asked him to help her find one of her green gloves, which he did, but he did not do anything to her; that after they visited the three houses mentioned in the testimony of Miss Drewery, she told him that if he saw “Country” Ellis to tell him she would be back after 6:00 p. m., and she left between 4:00 and 5:00 p. m. on the bus from Ashley and Wellons streets.
Several colored persons testified on behalf of the defendant to the effect that whеn they saw Miss Drewery and the defendant together on January 23, 1954, there was nothing out of the ordinary in her appearance, clothing or manner; that she and defendant danced together in one of the houses and that he was not holding her in either of the houses or on the street.
The defendant called Gaskin Ellis, a white man known as “Country” Ellis, who testified that on January 23, 1954 he was at Henry Newsome‘s house on Wellons street for two or three minutes searching for a man; that while he was there a white woman he had never seen before, but whom he identified at the trial as Miss Drewery, tapped him on the shoulder and asked if he had a car and that when he told her he did not, she left his presence.
In rebuttal, Clayton C. Mason, a salesman at Allen‘s Hardware, testified that he worked at the Hardware all day January 23, 1954; that he did not see the defendant in the store that day. Nell Drewery, sister of the prosecutrix, testified in rebuttal that her sister came home to Black Creek in Southampton county on Thursday, December 24, 1953, and stayed until Sunday night, the 27th, and that she and the prosecutrix were together all night, Saturday, the 26th, having slept together that night.
One of the universally recognized methods of impeaching a witness is to shоw his bad general reputation for truth and veracity in the community where he lives, or among his neighbors and acquaintances, by witnesses who know that reputation. Brotherhood of R. T. v. Vickers, 121 Va. 311, 93 S. E. 577; Law of Ev., Va. and W. Va., § 105; p. 188; 58 Am. Jur., Witnesses, § 725, p. 391; 20 Michie‘s Jur., Witnesses, § 67, p. 524. The proper mode of examining the witness called to impeach another who has testified in the case, is to inquire whether he knows the general reputation of the person in question among his neighbors and acquaintances; and when this question is answered in the affirmative he may state whether that reputation is good or bad. Davis v. Franke, 33 Gratt. (74 Va.) 413, 427; Langhorne v. Commonwealth, 76 Va. 1012; 4 Minor‘s Institutes, at page 861.
The evidence of the impeaching witness must be confined to the general reputation of the witness for truth and veracity and he may not testify as to the commission of specific acts of untruthfulness or other bad conduct, though these have bearing on veracity. Fenner v. Commonwealth, 152 Va. 1014, 148 S. E. 821; Allen v. Commonwealth, 122 Va. 834, 94 S. E. 783. Whether the impeaching witness in
It is the province of the jury to determine what degree of credit ought to be given the evidence but it is for the court alone to determine whether the witness is competent and whether the evidence is admissible. Mullins v. Commonwealth, 113 Va. 787, 75 S. E. 193; 7 Michie‘s Jur., Evidence, § 50, p. 87. A witness is competent to testify as to the general reputation of another who has testified in the case when he testifies that he knows that reputation, which is what the people in the community generally believe. Zirkle v. Commonwealth, supra; Greenleaf on Evidence (16th ed.), p. 586. Hence, if the impeaching witness is otherwise competent, the fact that he is not a personal associate of the person in question; that he is a police officer or that he had previously testified in the case are matters for the jury to consider in determining the degree of credit to be given his testimony.
The principal question presented by the defendant is whether his conviction of rape by force is contrary to the law and the evidence. He admits having sexual intercourse with the prosecutrix but denies that this act was by force and against her will. He contends that there is no evidence of her “struggling to resist” and that her version of what happened is contrary to human experience and inherently incredible. In this respect he says it is inconceivable that she would remain in his company approximately two and one half hours after the alleged rape without making some
Where the female is sixteen years of age or more and not under mental or physical disability as defined in the statute, unlawful carnal knowledge of her by force and against her will constitutes the crime of rape.
If the evidence of the Commonwealth is credible and from it the guilt of the accused is believed by the jury beyond a reasonable doubt, it is sufficient to sustain a conviction of rape, and this is true even though the evidence consists only of the uncorroborated testimony of the prosecutrix. But if the evidence is “inherently incredible or so contrary to human experience or to usual human behavior as to render it unworthy of belief,” it is not sufficient to warrant a verdict of guilty beyond а reasonable doubt. Young v. Commonwealth, 185 Va. 1032, 1033, 40 S. E. (2d) 805; Legions v. Commonwealth, 181 Va. 89, 23 S. E. (2d) 764; Addington v. Commonwealth, 161 Va. 975, 170 S. E. 565.
In the instant case the jury saw and heard the witnesses testify and by its verdict resolved the conflicts in the evidence against the defendant, and the verdict was approved by the judgment of the learned trial judge. Hence, our examination of the evidence is confined to inquiring whether the
On a very cold snowy day the prosecutrix, weighing 118 pounds and dressed in heavy clothes, was suddenly grabbed by the defendant, a man weighing 172 pоunds, as she undertook to walk past him on a street where no one else was present or nearby. She had never seen him before. When she screamed he threatened to kill her, put his hand over her mouth and forced her to go with him to a lonely shed where he by force and against her will compelled her not only to submit to two acts of sexual intercourse but also to other loathsome abuse.
Although the prosecutrix was absent from her place of employment for apрroximately two and one half hours, the evidence does not show the exact time of the attack or the amount of time she remained with the defendant thereafter. She said the attack seemed to her “like it lasted for hours.” The streets were icy and travel was slow. Whatever was the lapse of time between the offense and the complaint of the prosecutrix, which was clearly less than two and one half hours, she was under the physical control of the defendant, amоng strangers and there was no one in whom she could confide. She reported the assault and described her assailant as soon as she found friends. At that time she was crying and highly nervous, her clothes were wet to the waist and she was covered with dirt and peanut hulls.
In addition, the testimony of the prosecutrix was corroborated by several witnesses. The cashier at Smith‘s
On the other hand the defendant gave two conflicting explanations of what occurred between him and the prosecutrix. In his signed statement he specifically denied sexual intercourse with the prosecutrix, while in his testimony he admitted sеxual relations with her on January 23, 1954, but claimed that such relations were the result of a previous arrangement and that they had previously engaged in sexual intercourse. Moreover, for the purpose of impeaching defendant‘s credibility the Commonwealth showed that he had been convicted of a felony; that he was not in the Hardware on the morning of January 23, 1954 when he said the prosecutrix agreed to meet him, and that on December 26, 1953, the day he claimed to have first met the prosecutrix, she was not in Suffolk but was at her home in Southampton county. Furthermore, the white man the defendant said Miss Drewery was looking for testified that he had never seen her before the time she asked him at one of the houses whether he had a car.
In evaluating the evidence in the light of defendant‘s insistence that the acts and conduct of the prosecutrix were contrary to human experience and that her testimony was inherently incredible, the jury properly took into account the fact that she was dragged through snow and water, twice ravished, foully abused, her life threatened and then taken to unfriendly surroundings and among friends of the defendant. It was the function of the jury to say what was a reasonable reaction of a woman under such circumstances and conditions, and whether her acts and conduct were reasonable or contrary to human experience. Her prompt report when she reached friends, her physical and mental
For the reasons stated, we find no error in the record and therefore the judgment of the trial court is affirmed.
Affirmed.
HUDGINS, C. J., and EGGLESTON, J., dissenting.
EGGLESTON, J., dissenting.
The majority opinion sustains the conviction of the accused, a Negro, of rape of a white woman thirty-four years of age. His punishment was fixed at life imprisonment, but it might have been death.
According to the prosecutrix, her desire to purchase a certain kind of “fruitcake mix” prompted her to go in the early afternoon to a grocery store “about one mile away,” which incidently required her to pass through that part of the city of Suffolk which is inhabited by Negroes. While on this mission, she says, she was accosted on the street by the accused, in open daylight, and forced to go into a shed where she was raped by force and against her will.
The evidence shows without contradiction that for the next two and one-half hours the prosecutrix remained with the accused, walked along the streets of the city with him, passed numerous persons both white and colored, and visited with the accused three different places. In one of these places she talked to a white man out of the presence of thе accused. And yet all the while she made no outcry or complaint of the terrible crime which had been perpetrated upon her, no appeal for help, and gave no indication whatsoever that she was, as she says, being held or restrained
The testimony of the accused that the prosecutrix voluntarily submitted to him on this occasion, as she had previously done, may not be true. Indeed, it may have been so shocking to the jury as to have induced the verdict of cоnviction. We are not required to speculate as to what really occurred between the prosecutrix and the accused. The Commonwealth‘s case must stand or fall on the testimony of the prosecutrix, and that I think is too fantastic and improbable to sustain a finding of guilt beyond a reasonable doubt.
In Legions v. Commonwealth, 181 Va. 89, 23 S. E. (2d) 764, we reversed a judgment of conviction and sentence of death imposed upon a Negro for the rape of a white woman based upon a similarly incredible story of thе prosecutrix. In my opinion, what we said in that case applies here: “Of course we are mindful of the force of a jury‘s verdict, approved by the trial court, but we have said time and again that we are not required to believe that which we know from human experience is inherently incredible. ‘What we know as men we are not required to forget as judges.‘” (181 Va., at page 92, 23 S. E. (2d), at page 765.) See also, Terry v. Commonwealth, 174 Va. 507, 6 S. E. (2d) 673; Vance v. Commonwealth, 155 Va. 1028, 154 S. E. 512.
I would set aside the verdict of the jury, reverse the judgment of conviction, and remand the case for a new trial if the Commonwealth be so advised.
HUDGINS, C. J., concurs in this dissent.