149 Va. 383 | Va. | 1927
delivered the opinion of the court.
H. A. Limbaugh was convicted of the seduction of Irene Carroll, a girl of seventeen years of age, and sentenced to the penitentiary for a term of four years.
Limbaugh and his wife were chiropractors and had practiced their profession in Staunton for several years prior to August, 1925. Their office was on the second floor of a building on one of the public streets of the c ty. Back of the office, they had their private apartment. There was a large reception room on the front of the apartment, with one door communicating with a small operating room and another with a dressing room where patients were prepared for operations. There was a partition between the dressing room and the
The Limbaughs sometimes had from thirty to forty patients a day. Among their patients were H. N. Sackett and his wife of Fishersville, a small village about seven miles east of Staunton. The prosecutrix, Irene Carroll, lived in the same village. She was subject to “epileptic fits.” The Sacketts thought they had been benefited by the treatment of Dr. Limbaugh, and persuaded the prosecutrix and her mother, who were quite poor, to permit them to take Irene to Staunton for consultation with and treatment by him. Accordingly, on August 6, 1925, the Sacketts took Irene and her mother in their car to Staunton for the consultation. Dr. Limbaugh took a history of the case, and agreed to treat Irene daily for ten days for $15.00, and thereafter every other day for a while and later at intermittent times, if necessary, for $1.00 a treatment. They had never met each other before this introduction. Irene was taken back and forth for these treatments by Mr. or Mrs. Sackett, or both of them. Usually Mrs. Sackett remained at the office while the treatment was being given, and was there on August 8, 1925.
Irene testified that at the third treatment Dr. Limbaugh told her that he could not help her unless she would have intercourse with him, but that she declined; that he told her that he had been examined and could not have children, and as he had told her that he could not help her unless she had intercourse with him,
When the prosecutrix was being examined in chief, . she was permitted, over the objection of the accused, to testify as follows: “Q. Did you tell her (your mother) whose baby it was? A. She asked me to tell her, and I told her that I would in a few minutes, and I told her it was Dr. Limbaugh’s. Q. What did you say to Dr. Mosby? A. He asked me whose it was, and I said it was Dr. Limbaugh’s.” Each of these questions was objected to promptly, the objection was overruled, and exception duly taken. After the answers were given, a motion to strike them out was made and overruled, and exception taken. These declarations were made to the mother and the attending physician at the time the child was born and in the absence of Dr. Limbaugh. They were plainly self-serving and immaterial. They could add nothing to the testimony of the prosecutrix as to the paternity of the child, and the objection to the questions should have been sustained.
“Declarations of a witness made out of court are not admissible for the purpose of corroborating his testimony in court, for the reason that such evidence is hearsay. Oliver v. Commonwealth, 77 Va. 590; Howard v. Commonwealth, 81 Va. 488; Repass v. Richmond, 99 Va. 508, 39 S. E. 160; Jessie v. Commonwealth, 112 Va. 887, 890, 71 S. E. 612.” Atkins v. Commonwealth, 132 Va. 500, 510, 110 S. E. 379, 382.
“Q. Tell the jury what happened on one of these occasions?
“A. One time, I was sitting out in the front, in the reception room, and Doctor Limbaugh called me, and
Motion was also made to strike out tMs answer, but was overruled aind exception taken. This ruling was highly prejudicial to the accused.
The testimony was offered not for the purpose of impeaching the veracity of the defendant as a witness, but of showing his attitude in his intercourse with women.
In Colvin v. Commonwealth, 147 Va. 663, 137 S. E. 476, 477, it is said: “There is much to be said in favor of putting before the jury a man’s general reputation in the community relevant to the character of the offense with wMch he is charged, though not first put in issue by him,” but tMs would not warrant the reception of testimony of an alleged isolated assault upon another woman under entirely different circumstances. Conceding the relevancy of such testimony, there is much relevant testimony that is rejected on account of undue prejudice, unfair surprise, or confusion of issues. 1 Greenl. Ev. (16th ed. by Wigmore), section 14a. The accused comes to trial to meet the specific charge against him, not to vindicate or to explain every collateral charge that may be made in the course of the introduction of the evidence. His general reputation for specific traits of character he is
In Jones on Evidence (2d ed.), section 143, it is said: “It is a familiar rule that it is improper, on the trial of a defendant for a crime, to prove that he has committed other crimes, having no connection with the one under investigation. Such other acts of criminality or immorality are not legally relevant and should not be dragged in to prejudice the defendant or to create a probability of guilt.” See also 10 R. C. L., page 951, section 121; Dillard v. Collins, 25 Gratt. (66 Va.) 343, 359; Price v. Commonwealth, 21 Gratt. (62 Va.) 846, 868.
There are some apparent exceptions to this rule, where the object is to show guilty knowledge, motive, design, etc., but they need not be noticed as they have no application to the instant case.
At the conclusion of the evidence for the Commonwealth, the defendant moved to strike it out, because (1) the evidence of the prosecutrix did not make out a case of seduction, and (2), even if it did, her testimony was not corroborated as required by the statute. The motion amounted to a directed verdict of acqMttal. It is said we have no such practice in Virginia, though, in the absence of' fraud, no power has yet been discovered which can set aside a verdict of not guilty in a criminal case. Montgomery v. Commonwealth, 98 Va. 852, 856, 37 S. E. 1.
Counsel for the accused express the opinion “that the crime of seduction cannot be committed by a married man without an appeal, in some way, to the affections of the woman seduced,” and in support of that opinion make the following quotation from an able and thoughtful article of Mr. Charles Curry, of the Staunton, Virginia, bar, citing many cases, and reported in 5 Va. Law Reg. 208: “The consideration which draws the female aside from the path of virtue must, in some way or other, be an appeal to her affections, and the artifices and wiles used must be to gain her confidence and win her heart. Without this, it is believed there can be no seduction under this statute. Not only is this true, but the illicit connection essential to complete and perfect the crime must have resulted from and have been the actual consequence of the artifices based upon the pretentions of affection, and not the result and consequence of some other cause.”
Such, as a general rule, is undoubtedly the fact in the case of seduction by unmarried men, but the statute also recognizes the fact that there may be seduction by a married man, and provides the punishment therefor.
Seduction was not a crime at common law, but is wholly a creature of statute, and from the statute we must gather, as best we can, the intention of the legislature. Whether the man be married or not, there must be a leading astray of the female from the paths of virtue. Mere sexual intercourse is not sufficient. But the means by which the female may be led astray are not necessarily the same in the case of a married man and one who is not married. As said in Flick v. Commonwealth, 97 Va. 766, 769, 34 S. E. 39, 41: “It must be borne in mind that the offense here charged is seduction by a married man, which of itself excludes many of the arts, wiles and professions and promises which may be brought to bear by a single man to establish a footing and influence with a woman and thus become the means by which he accomplishes her ruin.”
But notwithstanding this exclusion, the fact that the statute punishes as a crime seduction by a married man, is a recognition of the fact that there are other means by which, within the meaning and intent of the statute, a female of previous chaste character may be led astray from the paths of virtue. The means adopted may be different in different cases, but it is said that “if in fact they accomplish the object, they are sufficient in law.” Bish. Stat. Crime, section 640.
In Flick v. Commonwealth, supra, the prosecutrix
The following instruction given in that case was also approved: “Seduction, as applied to this case, is the offense of inducing an unmarried female of previous chaste character, by a married man, to consent to unlawful sexual intercourse by enticements and influences which overcame her scruples.”
In Abbot’s Law Diet., title “Seduce,” seduction is defined as “the wrong of inducing a female by enticements and persuasions overcoming her reluctance and scruples.”
It thus appears that there may be seduction by a married man, without “urgent importunity based upon professions of attachment,” and that the offense consists in leading astray from the paths of virtue of a female of previous chaste character. If other means than appeals to the affection of the female overcome her-
In the instant case, the defendant occupied a confidential relation to the prosecutrix, that of' doctor and patient. He was thirty-five years of age, she seventeen. She established a good character for truth and veracity, and for virtue and chastity. If her statement be true, that the refused to have sexual intercourse with him until he assured her that without it he could not help her, and that she thought that as he was a doctor he ought to know, then he comes within the meaning and intent of the statute.
The defendant denied most positively every material statement of the prosecutrix connecting him with the alleged crime. Under the terms of the statute (Code, section 4413)
Instruction F, given for the Commonwealth, was as follows: “The court instructs the jury that if they believe that one or more of the witnesses have testified falsely about any material point in his, her or their testimony, they may disregard the whole of the testimony of such witness or witnesses.” In the brief for the Commonwealth it is admitted that “such an instruction as this has never been given by a Virginia trial court. In two instances error has been assigned for failure of the trial court to give the instruction and each time the court held it was not error to have refused to give the instruction.” Hash v. Commonwealth, 88 Va. 172, 199, 13 S. E. 398; Jarrell v. Commonwealth, 132 Va. 551, 110 S. E. 430. In the same brief, referring to this instruction, it is also said: “The Commonwealth’s attorney rang the changes on it in his argument to the jury.”
The instruction in the Hash Case told the jury that if they believed that a designated witness “wilfully swore falsely,” that such false testimony “vitiated and destroyed the whole of his evidence.” This was a manifest invasion of the province of the jury, and need not be further noticed.
In the Jarrell Case the court instructed the jury “that if they believe that Harry Jarrell and J. P. Thomas, or either of them, have knowingly testified untruthfully
“Our own views upon the subject under consideration are as follows: The credibility of witnesses is so peculiarly and exclusively within the province of the jury that we think' it would be improper for.the court to give such an instruction as that under consideration, which was refused in the case before us, because of its singling out by name certain witnesses. We think that naming of any particular witness or witnesses in such an instruction would tend to lodge upon the minds of the jury the impression that the trial judge is not satisfied as to the truth of the testimony of the witness or witnesses mentioned; which would certainly be an improper invasion of the province of the jury. If indeed it is an admitted or uncontroverted fact, or there is clear and convincing evidence in the case that a witness or witnesses therein has or have wilfully, or which is the. same thing, knowingly, testified untruthfully on any material matter, such an instruction as that under consideration may, in the discretion of the trial court, be properly given, if couched in general terms, to the effect that if the jury believe from the evidence that any witness or witnesses in the case have so testified, they are at liberty to disregard the whole of their testimony. But the trial judge should, as to such an instruction, in every case, act with caution; he should never give such an instruction unless from all the evidence he believes that wilful false swearing has been done; and even then he should refuse to give such an instruction if he feels that the jury would be warranted by the evidence in coming to a different conclusion aá to such testimony.”
Where a party has had a fair trial on the merits of his case and substantial justice has been
For the errors hereinbefore pointed out, the judgment of the trial court will be reversed, the verdict of the jury set aside, and the ease remanded to the trial court for a new trial, not inconsistent with the views hereinbefore expressed.
Reversed.
Section 4418. The evidence necessary to convict; limitation of prosecution; marriage a bar to conviction.- — No conviction under sections forty-four hundred and ten and forty-four hundred and eleven shall be had on the testimony of the female seduced, abducted, or detained, unsupported by other evidence, nor unless the indictment shall be found within two years after the commission of the offense; provided, that the subsequent marriage of the parties may be pleaded in bar of a conviction.