Brown v. CommonwealthBrown v. Commonwealth
delivered the opinion of the court.
On Nоvember 22, 1965, upon the complaint of his wife, a warrant was issued charging Grover C. Brown with unlawfully and feloniously committing fornication with his daughter, Bonnie D. Brown, in violation of Code § 18.1-191 [Repl. Vol. I960]. 1 After a preliminary hearing the case was sent on to the grand jury which found an indictment charging him with that offense. Upon arraignment in the trial court the defendant pleaded not guilty and was tried by a jury which found him guilty and fixed his punishment at confinement in the penitentiary for ten years. The defendant’s motion for a new trial was overruled and judgment entered on the verdict. We granted the defendant a writ of error.
On appeal the defendant contends that (1) the evidence is insufficient to support the verdict; (2) the trial court erred “in failing to grant a mistrial when the Commonwealth called the defendant’s wife to the stand;” (3) the court erred in admitting certain evidence over the objection of the defendant; and (4) the court erred in failing to grant a mistrial because of the imprоper argument of the attorney for the Commonwealth before the jury.
In November, 1965 the defendant Brown, his wife and four daughters lived on Bruce Place in the city of Portsmouth. The eldest of the daughters was Bonnie, who became twenty-one years of age on August 12, 1965. Bonnie testified that on Sunday, November 21 of that year, shе and her six-year-old sister went with their father to Camp Civitan on a service call. After the service call, which lasted about two hours, the father took the other daughter home and asked her (Bonnie) to go with him to his business office, which she did. He told his wife that they were going to the shop and “do some work on the books.” At that time Bonnie was doing clerical work for her father who operated a heating and air-conditioning business in Portsmouth. The place of business consisted of an office in the front and a workroom in the rear. She further testified that upon their
Over the objection of the defendant, Bonnie further testified that her father had been having sexual intercourse with her since she was twelve years old and that, this continued until November 21, 1965. When asked, “[D]id any condition ever arise as a result of this relationship between you and your father?” she replied, “Yes, I had a baby” in 1962. During this relationship with her father she said that he forbade her having “dates” with young men.
On cross-examination Bonnie admitted that not until November 22, the day following the last act of intercourse did she tell her mother of the relations between her and her father. She said that she had refrained from making this disclosure because of the “threats that my father had made to me.” Nor did she make a disclosure of such relations to her grandmother or other relatives or friends, some of whom lived nearby.
Immediately after the incident on November 21, she told her father that she wanted to leave home and go to live with a friend in Richmond, to which he at that time agreed. But on the next day, when she again discussed with him in the prеsence of her mother the subject of leaving home, he objected, became very angry and slapped her in the face, knocking her glasses across the floor. He struck her, she said, “repeatedly” and “brutally.” The mother intervened and told the defendant that if Bonnie left home she (the mother) would gо with her. Following this altercation on November 22, Bonnie swore out a warrant against her father charging him with assault. On the same day the defendant’s wife swore out the warrant charging him with incest with his daughter.
Bonnie’s mother, the wife of the defendant, was called as a witness for the prosecutrix but on objection of the defendant was not permitted to testify. More of this later.
The defendant, testifying in his own behalf, said that he was forty-four years of age and for several years had conducted a heating and air-conditioning business in the city of Portsmouth. He said that on November 21, 1965 he took Bonnie and her sister with him on a service call to Camр Civitan which was completed about 3:30 P.M. He denied having taken Bonnie to his place of business on that day and having sexual relations with her there. He further denied that he
Several witnesses testified that thе defendant had a good reputation for truth and veracity in the community.
We think the sufficiency of the evidence to sustain the verdict and judgment was a question for the jury. They have accepted the testimony of the prosecutrix which, if true, shows that her father committed fornication with her in violation of the statute. Code § 18.1-191.
The trial court instructed the jury that if they believed from the evidence that the prosecutrix “voluntarily participated in the offense charged to the defendant * * * she thereby became an accomplice” and that if an accomplice her testimony “ought to be received with greаt caution by the jury.”
[1] In this State it is well settled that while the evidence of an accomplice should be received and acted upon by a jury with great caution, the jury may, if they are satisfied of the guilt of the accused, convict him upon the uncorrorborated testimony of such an accomplice.
Watkins
v. Commonwealth,
As has been said, the attorney for the Commonwealth called the defendant’s wife as a witness for the prosecution and upon objection she was not permitted to testify. Although there was no motion by the defendant for a mistrial, he now argues on appeal that such mistrial should have been ordered.
In
Wilson
v. Commonwealth,
In the present case the conduct of the attorney for the Commonwealth in calling the wife оf the defendant to the stand was in plain violation of the statute and was ground for a mistrial. Indeed, in its oral opinion overruling the motion for a new trial, the trial court stated that it would have granted such a motion had it been made, but not having been made, the incident was waived and could not be raised after the unfavorable verdict by the jury. We agree with this ruling.
Wilson
v.
Commonwealth, supra,
[3] We do not agree with the contention that the trial court erred m admitting in evidence the testimony of the prosecutrix that her father had had sexual intercourse with her for several years prior to the incident of November 21, 1965.
“[I]t is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of - time, admissible for the purpose of throwing light upon thé relations of the parties and
Similarly, in
Herron
v. Commonwealth,
In the present case the testimony of the prosecutrix is that the relationship with her father began when she was twelve years of age and continued until the final incident on November 21, 1965. Thus, it showed the defendant’s repeated incestuous purpose.
The testimony of the prosecutrix that she gave birth to a child was properly admitted in evidence as corroborative of her testimony of the incestuous conduct of the defendant. 42 C. J. S. Incest § 15-c, p. 514;
State
v.
Koch,
The defendant next complains of the admission of testimony of the prosecutrix that he slapped her repeatedly and brutally on November 22, the day following the last incestuous act for which he was being prosecuted. The argument is that this was a separate offense and in no way related to the alleged incestuous act.
The trouble with this contention is that in his opening statement counsel for the defendant told the jury about the assault and later the defendant voluntarily took the stand and gave his version of the altercation and the alleged assault. Moreover, evidence of such cruel treatment was proper as showing his intimidation of the prosecutrix. 42 C. J. S. Incest § 15-b, p. 513;
Potts
v.
State,
To support or corroborate his testimony that he and the prosecutrix were not together at the workshop between 1:00 and 3:00 P.M., as she testified, the defendant offered in evidence an invoice or charge ticket rendered by him to Camp Civitan which shоwed that his services there were completed at 3:30 P. M. He testified that this ticket was in his own handwriting, was written shortly after his work on
It will be observed that since the defendant, who wrote the ticket, was a witness, we are not here concerned with the introduction of the business entry as an exception to the hearsay rule. There is considerable authority for the view that to warrant the introduction of а business entry, whether as an exception to the hearsay rule or otherwise, such entry must have been made as a part of a series of reports showing a regular course of business dealings and not as a record of a single isolated transaction. 30 Am. Jur. 2d Evidence § 937, p. 58; Annotation, 17 A. L. R. 2d § 5, p. 242; 32 C. J. S. Evidence § 685(1), p. 913. Under this view the ticket, being a record of a single isolated transaction, was not admissible in evidence.
On the other hand, according to Wigmore on Evidence, 3d Ed., Vol. Ill, § 737, p. 75, where, as here, no exception to the hearsay rule is involved, the limitations of the shopbook rule do not apply. Under this view the ticket was admissible in evidence.
It is not necessary that we here decide which view should be adopted. Assuming that the exclusion of the ticket from the evidence by the trial court was improper, such ruling was clearly harmless error. The defendant,, testified that he was at Camp Civitan and not at his workshop at the time of the alleged crime. The jury have rejected this testimony. There is no reason to believe that they would have believed him because the ticket supported this testimony.
[4] The final assignment of error is that the trial court erred in failing to grant a mistrial because of what the defendant says was the inflammatory argument of the attorney for the Commonwealth before the jury. Several of the incidents are detailed in the brief, but an examination of the record shows that in only one did counsel for the defendant object to the argument of which he now complains. In the absence of such objection in the lower court we will not consider the incidents now complained of.
Russo
v. Commonwealth,
The only part of the argument objected to by the defendant and the trial court’s action thereon are thus recorded:
“ [Mr. Piersall]: Gentlemen of the jury, I am sure you remember when he objected to almost every question I asked that young girl about the baby, about when this relationship started, about howlong the relationship lasted, about when it ended, and yet he would have the gall to stand up here and say to you that the Commonwealth has not done its duty, when he has objected to everything that we have tried to do today.
“Mr. Goldblatt: If Your Honor please, I ask you to advise the jury that when an objection was made and sustained by Your Honor, there was good and ample reason for it.
“Mr. Piersall: If it was sustained.
“Mr. Goldblatt: I will object again to improper testimony.
“The Court: Go ahead, Mr. Piersall. I don’t think it requires any ruling of the court.”
In the trial of a criminal case counsel for the defendant has the right to, and indeed should, object to questions which have the effеct of introducing improper evidence before the jury. The argument of the attorney for the Commonwealth was improper insofar as it criticized proper objections made by counsel for the defendant. However, since counsel for the defendant made no motion for a mistrial on aсcount of it, there was no duty on the trial court on its own motion to declare a mistrial.
The judgment is
Affirmed.
Notes
“§ 18.1-191. Adultery and fornication by persons forbidden to marry; incest.— If any person commit adultery or fornication with any person whom he or she is forbidden by law to marry, such person shall be guilty of a misdemeanor; provided, however, that if such person commit adultery or fornication with his daughter or granddaughter, or with her son or grandson, or her father or his mother, such person shall be punished by confinement in the penitentiary for not less than one nor more than ten years, or, in the discretion of the jury or the court trying the case without a jury, by confinement in jail for not more than twelve months and by a fine of not more than one thousand dollars, either or both.”