132 Va. 543 | Va. | 1922
delivered the opinion of the court.
Upon an indictment charging that he did “feloniously, under promise of marriage, seduce and have illicit connection with Laura Tillman, an unmarried female of previous chaste character,” Pleasant Harding, Jr., was tried, convicted and sentenced to a term of four years in the penitentiary. The case is here for review, and there are three assignments of error, which will be disposed of in their order.
1. It is claimed that the court erred in refusing to set aside the verdict, “because the promise of marriage was not corroborated.” As a ground upon which to ask for a reversal of the judgment of the lower court, this assignment is wholly without merit.
The indictment was found and the case was tried in Fluvanna county. The evidence shows that both the accused and the prosecutrix resided in that jurisdiction. The accused testified that their acts of intercourse took place in her home, while she fixed the place as being near a road between her home and Antioch church, where they often went together. The evidence of the witnesses, as copied in the record, does not show in terms that the place of intercourse, as fixed by the prosecutrix, was in Fluvanna county, but in the bill of exceptions containing the evidence the trial judge is careful to set out that such evidence “together with the certificate of the judge at the énd of the stenographic r&port” is all the evidence introduced; and the certificate referred to is as follows: “It is certified that immediately after the rendition of the verdict, and while the evidence was fresh, a motion was made to set aside the verdict (as appears from the record), and it was urged by the defendant’s counsel that there had been a failure to prove the venue of the offense as alleged, but the motion was overruled, the recollection of the court being, as it still
To support the contention that the venue was proved, counsel representing the Commonwealth filed the affidavits of R. H. Haden, member of the Fluvanna bar present at the trial, and of J. H. Payne and J. C. Shepherd, members of the jury, all three of whom made oath that the place of the offense as fixed by the prosecutrix was shown by affirmative evidence, in answer to a direct question by the attorney for the Commonwealth, to have been in Fluvanna county. To the contrary, counsel for the prisoner filed the affidavit of the stenographer, A. C. Williams, to the effect that the transcript of the evidence made by him and embodied in the bill of exceptions, was a true and accurate record. There is a stipulation in the record that these affidavits may be considered by this court, but they are not made a part of any bill of exceptions. The three affidavits first above mentioned are so definite and particular in their averments as to leave small room to doubt that the venue was specifically proved by one or more questions and answers designed especially for that purpose, and inadvertently omitted or overlooked by the stenographer. Whether these affidavits, notwithstanding the agreement of counsel that we may read them, are made a part of the record so as to permit us to consider them, seems doubtful, to say the least of it; but it is not necessary to rest the fate of the assignment now under consideration upon such affidavits. The other facts above recited, affirmatively appearing in the evidence as certified, may be said to raise a strong presumption that the offense was committed in Fluvanna. (Richardson’s Case, 80 Va. 124.) When to this presumption is added the certificate of the trial judge that, according to his recollection, “the venue of the offense was satisfactorily proved to have been in Fluvanna county,” we ought not to reverse the judgment on the ground that such proof was lacking.
“The action of the court in overruling the motion, based on the view that the venue had been sufficiently established, comes to us not only with the usual presumption favoring the correctness of the judgment of a trial court, but upon the facts and circumstances appearing in the evidence and detailed above, which of themselves raise a violent presumption that the Robertson house was within the local jurisdiction of the court, and we do not feel warranted in reversing the judgment upon this point.”
The judgment is affirmed.
Affirmed.