149 Va. 447 | Va. | 1928
delivered the opinion of the court.
The accused, who at the time of the crime charged were eighteen and sixteen years old, respectively, have been convicted of an assault with intent to commit rape upon a young girl, she being then just above the age of fifteen years. The general circumstances of the crime, as shown by the testimony introduced by.the Commonwealth, are, that as this girl was coming home from a business school with a girl friend, the accused, being in an automobile, asked the girls if they wished to be carried home. It was raining at the time, and they accepted the invitation. After stopping to allow Lewis to get out at his home, and at the request of the prosecutrix, Locke was directed to drive with both of the girls to the home of her friend, Cora, and leave her there, but to return with the prosecutrix. When this was done and these two returned, it was suggested that the prosecutrix get out of the machine and go into a house to see the sister of Lewis, whom she knew. The three, Locke, Lewis and the prosecutrix then went into a dwelling house, which proved to be empty, next door to Lewis’ home. The front room was partly furnished. When she found that the sister of Lewis was not there, she asked to go home, but was told that she could not go until she took a drink of whiskey. Lewis gave her whiskey and forced her to drink much more than she intended to by holding her and putting the bottle to her mouth. She became dizzy, but they forced her to drink again, and thereafter each of them, Locke and Lewis, separately,
Someone had in the meantime notified the police, and the girl came downstairs and walked away, having first denied to the policemen that she had been in the house. They later became convinced that this statement was untrue, followed her a square or two and brought her back, when she gave them an account of the occurrence. A subsequent examination of her person disclosed no physical injury.
The accused at first denied that she had been there, and later that anything criminal or improper had occurred.
The evidence, then, clearly justifies the conviction, and it will not be disturbed here unless there has been some prejudicial error committed.
The first assignment refers to the conversations by the policemen with the prosecutrix out of the presence of the accused. These conversations consisted of the replies of the girl to their accusations, and constitute her complaint of their wrongdoing. Immediately afterwards and in the presence of both of the accused, the prosecutrix repeated substantially everything which she had just indicated in her complaint. It would be difficult, indeed impossible, to separate or indicate any damaging statements against the accused made in their absence to the officers which were not repeated in their presence and immediately following the complaint. The complaint itself was admissible. Haynes v. Commonwealth, 28 Gratt (69 Va.) 948. So that the first assignment of error is not well taken, and constitutes no ground for criticism.
The second assignment of error grows out of the fact that Locke’s mother testified in his behalf and stated that her son had never been in “serious trouble.”
In the absence of the testimony tending to show good character or history, introduced by the accused, this testimony would have been inadmissible, but the clear purpose of the mother’s testimony was to create an impression in his favor, which the Commonwealth was justified in rebutting. The accused having introduced the subject cannot complain that the prosecution was allowed to pursue it. Harris v. Commonwealth, 129 Va. 753, 105 S. E. 541.
The third assignment of error is based upon the fact that when the prosecutrix was being cross-examined she was asked: “If the officers had not stopped you, you would not have made any complaint, would you?” And she replied: “I would have gone home.” The court, for some reason not clear to us, sustained an objection to the question and answer. However prejudicial this might otherwise have been to the accused, it becomes harmless in this case, because the prosecutrix, in subsequent answers to other questions, testified without objection fully and clearly as to this matter, admitted that she had at first denied that she had been in the house, stated that she had left the place and was on her way home. When she was asked why she did not at first tell these officers that these boys had taken her up in the house and attempted to wrong her, replied: “Would you get somebody in trouble if you could help it?” So that it became perfectly apparent that the prosecutrix did not desire or intend to make any complaint at that time. There
The case would have a different aspect if the prosecutrix were a grown woman in the possession of her normal faculties of mind and body.
The exception presents no ground for reversal, for it is quite apparent from the other testimony which was before the jury that she would have made no complaint. For this reason, the exception becomes immaterial. Code, section 4414; Buzzard v. Commonwealth, 134 Va. 641, 114 S. E. 664.
The fourth assignment of error is based upon this ruling of the court: The prosecutrix was asked: “Did you not have a conversation with Mrs. Julia Bruffy at your house some weeks ago, last summer sometime, and she asked you what this boy, Locke, had done to you to cause him to be locked up in jail, and did you not say he had done nothing to you at all that was improper or wrong?,” and she answered: “No, sir; I told her I was under a bond not to say anything about what happened at all, I did not tell her.” The attorney for the accused then pursued the subject
The bill of exceptions showing this ruling contains this memorandum as justifying it: “The question asked by counsel had been asked and positively denied by the witness — it was therefore unnecessary to repeat question.”
This is doubtless literally true, and certainly trial courts should expedite proceedings and eliminate all unnecessary repetitions and prolonged examinations of witnesses. Inasmuch, however, as the accused had the right to prove material and contradictory statements of the prosecutrix, they were entitled to have a categorical reply to their question, and to have all the particulars of time, place and circumstances of the conversation to which the question referred, the court’s interruption was premature. If the accused had thereafter offered to prove by Mrs. Julia Bruffy that the prosecutrix had made the contradictory statement suggested, and had been denied that right, this would have been prejudicial error. No such offer, however, was made, either then or thereafter, and the suggestion of the question that she had made a contradictory statement is unsupported. We must assume that if such a fact could have been shown, the witness, Mrs. Bruffy, would have been introduced or offered for that purpose. Inasmuch as the prosecutrix has denied making any such statement and there is no contradiction of it, there is no reversible error.
The fifth assignment of error is to the refusal of the court to permit the accused to show that after the Commonwealth had shown that Locke had been before the juvenile eourt charged with delinquency a number of times, the accused was not permitted upon rebuttal
We do not think that this could have prejudiced the accused. The court was not trying or reviewing these delinquencies and the introduction of evidence of such collateral matters must remain largely a matter of discretion with the trial court. The accused having undertaken to show that he had never been in serious trouble before, and the Commonwealth having shown that he had been before the juvenile court a number of times, this was properly held by the trial court to conclude this branch of the inquiry and to give the jury all the information which they could properly apply or consider in this case.
The sixth assignment of error is because the court refused to give an instruction to the effect that the accused were entitled to the benefit of every reasonable doubt, but as it had already given nine instructions in seven of which the jury were told that the crime must be proved beyond a reasonable doubt, it is perfectly clear that this was not error.
Some of the evidence of the prosecutrix may tend to show acquiescence or consent on her part, but this is a question of fact which was clearly submitted to the jury in an instruction given for the accused, to the effect that if they believed from the evidence “that the accused merely attempted to commit said offense with her consent, then the punishment should be confinement in the city jail for not less than six months and not more than twelve months.” The jury found that they attempted to commit the offense of rape, as charged, against her will, and fixed their punishment within the limits prescribed by the statute for that crime. This was a jury question, and there
Affirmed.